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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


TREATISE 


AMERICAN   LAW 


EASEMENTS    AND    SERVITUDES. 


EMORY   WASHBURN,   LL.D., 

BUSSEY  PROFESSOR   OF    LAW  IN   HAEVARD   UNIVEESITr,    AUTHOR   OF   A   TREATISE 
ON   THE   AMERICAN   LAW    OP   REAL   PROPERTY. 


SECOND    EDITION. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

1867. 


Entered  according  to  Act  of  Congress,  in  the  year  1S67,  by 

EMORY    WASHBURN, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts 


T 
\%1 


University  Press  :  Welch,  Bigelow,  &  Co., 
Cambridge. 


TO   THE 

HON.    HORACE    BINNEY,    LL.D. 

In  dedicating  this  work  to  you,  without  first  asking  permission,  I  may 
have  presumed  too  far  upon  the  acquaintance  which  I  share  with  the 
profession  and  your  fellow-citizens  generally,  through  your  distinguished 
learning  as  a  jurist,  your  practical  wisdom  as  a  statesman,  and  the  fruits 
of  a  long  hfe  of  usefulness  and  honor. 

In  this  hour  of  peril  to  all  we  hold  dear,  it  is  grateful  to  recall  that  a 
few  remain  who,  like  you,  stood  by  the  nation's  cradle  at  its  birth,  and 
have  watched  over  its  wonderful  growth  as  it  rose  and  expanded  under 
the  protection  of  wise  laws,  and  the  invigorating  influences  of  beneficent 
institutions. 

It'  is  impossible  to  contemplate  even  so  minute  a  department  of  the  law 
as  that  to  which  the  following  pages  are  devoted,  without  perceiving 
something  of  the  all-pervading  spirit  of  progress  and  improvement  which 
has  hitherto  vitalized  the  jurisprudence  of  our  country.  And  of  no  State 
can  this  be  more  truly  said  than  of  Pennsylvania,  within  which  your 
labors  have  been  chiefly  employed. 

You  have  borne  your  full  share,  as  a  minister  of  the  law,  in  giving 
form  and  consistency  to  that  jurisprudence  which,  we  trust,  will  carry  it 
safely  through  the  ordeal  of  a  civil  war,  again  to  bless  a  prosperous  and 
a  united  people. 

In  the  hope  that  the  light  of  returning  harmony  and  prosperity  over 
our  common  country,  under  the  protection  of  Law,  may  yet  gild  the 
declining  hours  of  so  active  and  useful  a  life,  permit  me  to  subscribe 
myself,  with  high  respect, 

Your  obedient  servant, 

EMORY  WASHBURN. 
Cameridge,  February,  1863. 


H*J 


ERRATA. 

On  page  97,  23d  \iae,  for  covenantor  read  covenantee. 
"      133,  last  line,  /or  judgment  read  enjoyment 
"      271  note, /or  §  16,  read  Section  6. 


PREFACE 


TO    THE    SECOND    EDITION. 


The  manner  in  -which  the  first  edition  of  this  -work  has 
been  received,  is  a  gratifying  evidence  not  only  of  a  want  in 
the  profession  to  be  supplied,  but  that  the  attempt  to  meet  it 
has  been  reasonably  successful.  It  has  encouraged  the  au- 
thor to  a  renewed  effort  to  render  the  work  still  more  satis- 
factory and  complete.  In  the  present  edition  he  has  incor- 
porated about  a  hundred  pages  into  the  text  of  the  work, 
and  has  endeavored  to  collect  for  reference  every  case  to 
which  he  had  access,  which  had  been  decided,  upon  the  sub- 
jects of  which  it  treats,  before  the  volume  went  to  press. 
The  subjects  upon  which  the  text  has  been  chiefly  enlarged, 
have  been  the  doctrine  of  Basements  created  by  implication, 
upon  the  division  of  heritages,  and  the  interesting,  modern 
doctrine  of  mutual  easements  and  servitudes  between  parts 
of  a  once  common  estate,  growing  out  of  their  relation  to 
each  other  in  the  orderly  arrangement  of  buildings,  &c., 
upon  streets,  squares,  and  open  areas  in  cities  and  villages. 
Other  subjects  also  have  been  more  fully  developed,  and  in  a 
few  instances  the  text  has  been  changed  to  conform  to  the 
changed  condition  of  the  law. 

A  reference  to  the  numerous  cases  which  have  been  de- 
cided by  the  courts  since  the  publication  of  the  former 
edition,  would  serve  to  indicate  the  growing  interest  and 
importance  of  the  subjects  of  which  it  treats.  Indeed  it 
could  hardly  be  otherwise,  in  view  of  the  growing  wants  of 


vi  PREFACE   TO   THE   SECOND   EDITION. 

a  busy,  thriving  community,  who  are  constantly  building  up 
towns  and  villages,  and  calling  into  exercise  the  privileges 
and  conveniences  which  a  successful  prosecution  of  industry 
and  the  arts  demands.  While  the  law  is  continually  making 
progress  in  this  direction,  it  is  rather  by  the  application  by 
courts  of  known  and  familiar  principles  to  new  cases  as 
they  arise,  than  by  any  action  of  the  law-making  power  in 
the  State.  It  is  for  this  reason,  that  a  somewhat  liberal 
reference  has  been  made,  in  this  as  in  the  former  edition,  to 
elementary  treatises  of  foreign  jurists. 

The  author  would  be  doing  injustice  to  his  own  feelings 
if  he  failed  to  acknowledge  a  grateful  sense  of  the  expres- 
sions of  favor  with  which  his  attempt  to  supply  an  American 
work  upon  the  Law  of  Easements  and  Servitudes,  has  been 
received.  And  he  can  only  add  the  hope  that  the  present 
volume  may  be  found  equally  acceptable,  at  least,  with  that 
whose  place  it  has  been  prepared  to  supply. 

Cambridge,  June,  1867. 


PREFACE 


TO    THE    FIRST    EDITION. 


The  following  work  was  undertaken  at  the  suggestion  of 
various  gentlemen  of  large  experience,  that  something  of 
tlio  kind  was  needed  bj  the  profession.  This  conviction 
has  been  strengthened  in  my  own  mind,  at  every  step  of 
the  progress  of  its  preparation.  There  were,  it  is  true, 
treatises  extant  upon  some  of  the  topics  embraced  in  it, 
and  one  upon  the  general  subject  of  Easements  had  attained 
a  high  rank  as  a  work  of  merit.  But  an  American  lawyer 
need  not  be  reminded  that  the  treatise  of  Messrs.  Gale  and 
Whatley,  or  that  of  Mr.  Gale,  as  it  appears  in  the  third  edi- 
tion, was  in  all  respects  English  in  its  character,  and  in  the 
authorities  which  one  finds  there  cited.  If  here  and  there 
this  rule  has  been  departed  from,  it  has  been  too  infre- 
quent to  detract  from  its  character  as  a  purely  English 
work. 

It  appeared  in  1839,  and  in  1840  was  republished  in  New 
York,  with  notes  "  by  E.  Hammond,  Counsellor  at  Law." 
In  1848,  a  second  edition  of  the  English  work  was  pub- 
lished, and  in  its  Preface  the  authors  explain,  in  half  apolo- 
getic terms,  why  they  had  presumed  to  admit  into  it  the 
few  American  cases  which  it  contained.  "  In  Acton  v. 
Blundel,"  they  remark,  "  the  Court  of  Exchequer  Cham- 
ber cited  American  authority  as  at  least  proper  to  be 
weighed  and  examined  in  deciding  a  case  upon  principle. 
In  the  present  edition,  two  cases  have  been  inserted,  de- 


viil  PREFACE   TO   THE   FIRST   EDITION. 

cided  in  the  courts  of  the  United  States,  upon  a  question 
very  bare  of  authority,  —  the  legal  relation  of  owners  of 
several  stages  of  a  building.  They  have  been  taken  from 
an  edition  of  this  work  published  at  New  York."  A  third 
edition,  bearing  also  the  name  of  Mr.  Willes,  was  published 
in  1862,  which  not  only  sustained  the  high  character  which 
the  work  had  previously  held,  but  did  not  detract  from  its 
exclusive  nationality,  so  far  as  the  United  States  were  con- 
cerned. 

While,  however,  no  one  has  any  right  to  object  that  the 
authors  of  that  work  chose  to  confine  their  references  to 
such  cases  as  were  of  authority  in  the  English  courts,  it  is 
not  to  be  lost  sight  of,  that  there  were  scattered  through  the 
volumes  of  American  reports,  at  the  times  when  it  appeared, 
literally  hundreds  of  cases,  bearing  directly  upon  the  sub- 
jects of  which  it  treated,  many  of  which,  for  research  and 
ability,  would  not  have  suffered  in  comparison  with  the 
ablest  judgment  to  be  found,  upon  a  like  subject,  on  the 
records  of  the  English  courts. 

It  was  not,  therefore,  strange  that  a  sentiment  prevailed, 
that  the  American  Bar  needed  a  convenient  medium  of  ref- 
erence, where  the  learning  of  the  American  courts,  upon  a 
subject  of  such  general  interest  as  is  here  treated  of,  might 
be  found  by  the  side  of  that  of  the  Queen's  Bench  and  Ex- 
chequer Chamber. 

Another  reason  why  a  treatise  upon  the  English  law 
alone,  however  perfect,  could  not  but  be  inadequate  to  the 
wants  of  the  profession  in  the  United  States,  grows  out  of 
the  difference  there  is  in  the  condition  of  the  two  countries, 
and  the  fact  that  the  jurisprudence  of  a  people  must  con- 
form to  their  peculiar  wants  and  circumstances.  It  is  the 
difference  between  a  community  where  everything  has  be- 
come settled  and  compact  by  age,  and  tradition  and  pre- 
scription have  fixed,  in  the  national  mind,  notions  and  ideas 
which  render  all  but  inflexible  the  canons  of  property  and 
right ;  and  a  people  who,  while  sharing  in  these  tradition- 


PREFACE   TO   THE   FIRST   EDITION.  IX 

ary  habits  of  legal  thought,  have  been  busy  in  ingrafting 
upon  an  existing  system  laws  adapted  to  the  wants  and 
condition  of  a  new  and  growing  body  politic,  in  a  country 
with  essentially  different  physical  capacities  from  that  from 
which  they  had  borrowed  their  jurisprudence,  and  requiring 
its  rules  of  property  to  conform  to  the  genius  of  its  institu- 
tions and  the  forms  of  its  government. 

In  order,  however,  to  be  able  to  trace  and  understand 
wherein  this  complex  system  of  the  American  common  law 
is  coincident  with  or  differs  from  that  of  England,  its  rules 
are  to  be  sought  and  studied  in  the  multiplied  and  con- 
stantly increasing  volumes  of  reported  cases  of  the  English, 
as  well  as  our  own  national  and  State  courts ;  while  the 
difficulty  of  doing  this,  from  their  very  multiplicity,  is  to 
many,  if  not  most  of  the  profession,  well-nigh  insurmount- 
able. 

These  are  among  the  considerations  to  which  the  present 
work  owes  its  conception  and  execution.  And  while  for  the 
arrangement  of  its  parts,  as  well  as  the  collection  of  most  of 
its  materials,  I  have  been  obliged  to  content  myself  with  the 
unaided  results  of  my  own  reflection  and  research,  I  have 
not  hesitated  to  avail  myself  of  works  like  those  of  Messrs. 
Tudor,  and  Woolrych,  and  Angell,  which  treat  more  or  less 
in  detail  upon  the  subjects  which  make  up  the  body  of  this. 

It  has  been  my  aim  to  examine,  for  myself,  every  reported 
case  which  bore  sufficiently  upon  the  topic  under  considera- 
tion to  warrant  a  reference  to  it  as  an  authority.  The  cases 
thus  examined  considerably  exceed  a  thousand  in  number, 
and  the  fact  is  alluded  to  only  that,  if  effort  in  that  direc- 
tion shall  be  found  less  successful  than  I  could  have  wished, 
it  may  not  seem  to  have  failed  from  the  want  of  reasonable 
diligence. 

In  one  respect,  I  may  add,  I  found  much  embarrassment 
in  the  preparation  of  the  work. 

No  lawyer  need  be  told  that  many  of  the  principles  of  the 
common  law  of  Easements  are  derived  directly  from  the 


X  PREFACE   TO   THE   FIRST   EDITION. 

Civil  law,  and  may  be  found  in  tlie  Scotch  and  Continental 
systems  of  jurisprudence.  The  question  early  arose  in  this 
preparation,  how  far  it  was  desirable  to  collect  and  compare 
the  analogies  that  exist  between  these  systems  and  that  of 
the  common  law.  While  such  a  reference  might  have  given 
to  the  work  an  air  of  learning  and  research  disproportioned 
to  the  actual  labor  it  would  have  cost,  it  could  not  have 
failed  to  swell  it  to  an  inconvenient  size,  and,  what  seemed 
to  be  far  more  objectionable,  it  could  at  best  have  been  of 
but  doubtful  utility.  So  far  as  the  courts  of  common  law 
had,  in  their  reported  cases,  adopted  principles  which  were 
common  to  both  systems,  it  was  unnecessary  to  restate  them 
iu  the  language  of  the  original  sources  from  which  they  had 
been  derived.  And  so  far  as  there  were  parts  of  these  sys- 
tems which  had  never  been  recognized  by  the  courts,  a  dis- 
cussion of  them  could  be  little  better  than  speculative  in  its 
character,  and  would  require  careful  and  extended  explana- 
tions and  limitations,  that  they  might  not  mislead. 

After  considerable  reflection,  therefore,  it  was  concluded 
to  omit,  with  a  few  exceptions,  references  to  works  upon  the 
Civil  and  Continental  law,  except  for  purposes  of  explanation 
and  definition.  And  so  far  as  this  rule  has  been  departed 
from,  the  exceptions  have  been  limited  to  topics  upon  which 
the  common:  law  seemed  to  be  especially  defective  and  unsat- 
isfactory. Such  was  the  case,  for  instance,  in  the  matter  of 
"  party  walls."  And  where  this  has  been  done,  the  citations 
are  made  to  furnish  their  own  explanation,  and  are  in  little 
danger  of  misleading  even  the  casual  reader. 

If  it  should  seem  to  any  one  that  the  citations  of  authori- 
ties in  the  work  are  unnecessarily  numerous,  it  is  due  to  the 
subject  to  remind  such,  by  way  of  explanation,  that  not  a 
little  of  the  law  of  Easements,  as  it  is  now  understood  in  the 
courts  of  common  law,  has  been  progressive  in  its  character 
and  recent  in  its  development. 

The  rule,  for  instance,  Avhicli  regulates  the  rights  of  re- 
spective mill-owners  upon  the  same  stream  to  the  use  of  the 


PREFACE   TO   THE   FIRST   EDITION.  XI 

water  thereof,  was  settled  in  England  as  late  as  1805.  And 
the  rights  of  adjacent  owners  of  land  in  respect  to  subter- 
ranean waters  percolating  from  the  one  into  the  other,  it  is 
believed,  were  for  the  first  time  adjudged  by  any  court  of 
common  law  in  that  of  Massachusetts  in  1836,  but  were  not 
finally  settled  by  the  House  of  Lords,  in  England,  until 
1859.  And  because  these  decisions  have  been  so  recent  and 
progressive,  one  would  hardly  feel  at  liberty  to  assume  that 
any  proposition  to  which  they  relate  has  become  sufficiently 
familiar  law  to  be  stated  without  its  accompanying  author- 
ity. For  the  same  reason,  if  a  point  has  been  raised  and 
settled  or  discussed  in  more  than  one  court,  the  profession 
would  have  a  right  to  expect  that,  if  a  reference  is  made  to 
reported  cases  at  all,  it  should  be  extended  to  all  that  bore 
upon  the  subject  they  were  examining.  When  to  this  it  is 
added  that  the  questions  which  have  come  under  the  cogni- 
zance of  the  courts  were  many  of  them  so  far  original  in 
their  character  as  to  require  a  recourse  to  analogies  and 
general  principles  rather  than  settled  authorities,  it  will  be 
seen  why  the  judges,  in  their  opinions,  have  taken  a  wider 
range  of  discussion  than  the  particular  matters  before  them, 
and  why  the  reasoning  and  analogies  which  have  been  made 
use  of  under  one  state  of  facts,  have  been  resorted  to  for 
illustration  in  their  application  to  others.  The  same  case 
may  therefore  be  found  a  subject  of  reference,  not  only 
upon  different  propositions,  under  different  phases,  upon 
the  same  subject,  but  upon  different  subjects  themselves, 
as  they  have  come  up  in  the  course  of  the  work.  Anotlier 
reason  for  collecting  and  citing,  in  some  instances,  many 
cases  upon  a  single  point,  has  been  the  desirableness  of 
bringing  together  the  related  decisions  of  the  courts  of  the 
different  States,  in  order,  so  far  as  might  be,  to  work  out 
something  like  a  homogeneous  system  of  American  law 
upon  a  subject  of  such  common  interest.  If  to  this  is 
added  the  circumstance  of  the  great  number  of  these  indi- 
vidual cases,  which  has  been  spoken  of  in  another  connec- 


t 


Xll  PREFACE   TO   THE   FIRST   EDITION. 


tion,  it  is  hoped  that  the  multiplication  of  these  citations  will 
be  accounted  for  without  supposing  it  to  be  the  result  of 
carelessness  or  a  desire  of  unnecessary  display. 

Aside  from  the  want  of  an  American  treatise  upon  the 
subject  of  Easements  and  Servitudes,  there  is  something  in 
the  importance  and  wide  application  of  the  subject  itself, 
in  its  practical  bearings,  which  seemed  to  call  for  the  means 
of  understanding  it  more  fariiiliarly.  The  interests  with 
which  it  is  connected  are  not  only  various  and  multiform, 
but  they  concern  the  comfort  and  convenience  of  men  in 
their  relations  to  one  another,  as  well  as  in  that  of  members 
of  the  broader  associations  of  neighborhoods  and  civil  com- 
munities. Its  laws  are  found  adequate  to  determine  rights 
which  are  too  minute  to  be  measured  by  any  scale  of  value, 
at  the  same  time  that  they  embrace  within  their  care  inter- 
ests as  vast  as  those  involved  in  the  business  and  enterprise 
of  a  whole  people.  They  serve  to  trace  out  the  footpath 
from  the  cottage  to  the  spring  that  supplies  the  daily  wants 
of  its  inmates,  and  to  define  the  line  of  eaves'  drip  along  the 
few  inches  of  soil  upon  which  it  falls,  at  the  same  time  that 
they  reach  and  limit  the  rights  and  relations  of  property  be- 
tween the  citizen  and  the  public  in  the  banks  and  waters  of 
the  broad  rivers  which  form  the  highways  of  commerce,  and 
guide  and  regulate  the  application  of  the  elements  in  min- 
istering to  the  industry  and  arts  which  sustain  and  enrich 
a  nation. 

In  carrying  out  a  work  designed  to  embody  the  elements 
of  such  a  system  into  a  practical  and  convenient  form,  no 
reasonable  endeavor  has  been  spared  to  make  it  what  it  was 
supposed  the  profession  desired  ;  but  for  its  success,  its 
reliance  must  be  upon  their  indulgence. 

Cambridge,  February,  1863. 


CONTENTS. 


CHAPTER    I. 

OF   THE   NATURE,    CHARACTER,   AND   MODE   OF   ACQUIRING   EASE- 
MENTS  AND   SERVITUDES. 

SECTION  I.  p^,g3 

Nature,  Classification,  and  Qualities  of  Easements,  &c.  ...         1 

SECTION  11. 

Incidents  to  acquiring  Rights  of  Easement,  &c 22 

SECTION  III. 
Of  acquiring  Easements  by  Grant 33 

SECTION  IV. 
Of  acquiring  Easements  by  User  and  Prescription     ....       98 

SECTION  V. 
Of  Easements  by  Public  Prescription  and  Dedication    .     .     .     170 

CHAPTER    II. 

EASEMENTS  AND   SERVITUDES   OF  WAY. 

SECTION  I. 
Ways  defined,  and  how  they  afiect  the  Rights  of  Freehold       .     213 

SECTION  II. 
Of  Ways  of  Necessity 218 

SECTION  HI. 
Of  Ways  created  by  Grant 224 


tl 


XIV  CONTENTS. 

SECTION  IV. 
How  Ways  may  be  used , 240 

SECTION  V. 

Of  the  Rights  of  the  Land-Owner  and  Way-Owner,  in  Land  .     252 

CHAPTER    III. 

OF   EASEMENTS   AND   SERVITUDES   OF  WATER. 

SECTION  L 
Of  Property  in  Streams  and  Watercourses 264 

SECTION  IL 
Of  Rights  of  Irrigation 294 

SECTION  in. 
Of  the  Use  of  Water  for  Mills 308 

SECTION  IV. 
Of  Rights  in  Artificial  Watercourses 366 

SECTION  V. 
Special  Laws  as  to  Mills 393 

SECTION  VL 
Of  Rights  in  Rain  and  Surface  Water 427 

SECTION  VII. 
Of  Rights  in  Subterranean  Waters 440 

SECTION  VIIL 
Of  Rights  to  Eaves'  Drip 468 

SECTION  IX. 
Of  Rights  of  Passage  in  Public  Streams 474 

SECTION  X. 
Of  Rights  in  Water  by  Custom 488 


CONTENTS.  XV 

SECTION  XL 
Of  Rights  of  Fishery       491 

SECTION  XII. 

Of  Servitudes  of  Water  by  the  Civil  Law,  etc 502 

CHAPTER    lY. 

OF   EASEMENTS   AND   SERVITUDES   OTHER   THAN   OF  WAY   AND 

WATER. 

SECTION  L 

Easement  of  Lateral  Support  of  Land 511 

SECTION  IL 
Easement  of  Support  of  Houses 531 

SECTION  in. 
Easement  of  Party  Walls 535 

SECTION  IV. 
Easement  of  Support  of  Subjacent  Land 558 

SECTION  V. 
Easement  of  Support  of  Parts  of  the  same  House       ....     5G4 

SECTION  VL 
Easements  and  Servitudes  of  Light  and  Air 574 

SECTION  VIL 
Miscellaneous  Easements  and  Servitudes 595 

CHAPTER    V. 

OF   LOSS   OR  EXTINGUISHMENT   OF   EASEMENTS,   ETC. 

SECTION  L 

Effect  of  the  Unity  of  the  two  Estates 605 


XVI  CONTENTS. 

SECTION  II. 
Effect  of  conveying  one  of  two  Estates  in  reviving  former 

Easements 612 

SECTION  III. 
Of  Changes  in  Estates  affecting  Rights  of  Easement  ....     622 

SECTION  IV. 

Of  Acts  of  Owners  of  Easements  affecting  Rights  to  the  same     627 

SECTION  V. 

Effect  of  abandoning  an  Easement 631 

SECTION  VI. 
Effect  of  Non-User  of  Easements 639 

SECTION  VII. 
Effect  of  an  Executed  License  upon  an  Easement      ....     649 

CHAPTER    VI. 

REPAIES   OF  EASEMENTS   AND  REMEDY  FOR   INJURIES. 

SECTION  I. 
Repairs  of  Easements 654 

SECTION  11. 
Remedy  at  Law  for  Injuries  to  Easements 658 

SECTION  m. 
Remedy  in  Equity  for  Injuries  to  Easements 668 

SECTION  IV. 

Remedy  by  Abatement  for  Injuries  to  Easements      ....     675 

Index 685 


TABLE   OF   CASES    CITED. 


Abbott  V.  Mills 


175,  185,  186,  189, 

209 

V.  Weekly       7,  14,  116,  117 

Ackerman  r.  Horicon  Co.  6  71 

Ackroyd  w.  Smith       10,33,36,118 

Acton  V.  Blundell  12,  440,  443,445 

Adam  v.  Briggs  Iron  Co.  345 

Adams  v.  Andrews  23 

V.  Barney  675,  677 

V.  Emerson  214,  253 

V.  Harrison  429 

V.  Pease  479,  502 

V.  Ross  69 

V.  Van  Alstyne  603 

V.  Warner  350 

Addison  v.  Hack  650 

Albany  Street,  Matter  of  401 

Alder  v.  Savill  146 

Aldred's  Case  290,  578 

Alexander  v.  Boghel  78,  470 

Allan  V.  Gomme      87,  88,  109,  110, 

239,  242,  250,  357,  358,  629 

Allen  V.  Kincaid  222 

V.  Ormond  625 

V.  Scott  43 

Allis  r.  Moore  160 

Alston  V.  Grant  41,  81 

Alves  V.  Henderson  211 

American  River  Co.  v.  Amsden  477 

Amick  u.  Tharp  675,678 

Anderson  v.  Buchanan  219 

Andover  v.  Sutton  416 

Andrews  v.  Hailes  158 

Anonymous     90,  475,  493,  568,  577 

Anthony  v.  Lapham  279 

Appleton  V.  FuUerton  248,  254 

Arbuckle  I'.  Ward  127,151 

Archer  v.  Bennett  89 

Arkwright  v.  Gell  368,  471 


Arnold  v.  Connman  622 

V.  Foote  269,  287,  303,  307, 

347,348,  354 

V.  Mundy  474,  479 

V.  Stevens        124,  125,  596, 

641,  646 

Arundell  v.  M'Culloch  475 

Ashby  V.  White  659 

Ashley  v.  Ashley  127,  291,  378, 

381 

V.  Pease  350 

V.  Wolcott       267,  268,  269, 

270, 439 

Atkins  u.  Bordman      32,40,41,42, 

44,  129,  134,  165,  214,  245,  246, 

253,  254,  295,  350,  660 

Atkins  V.  Chilson  586 

Attorney-General  v.  Doughty     579 

V.  Nichol         673 

Atwater  v.  Bodfish       109,  177,  607 

Avery  v.  Stewart  119,  172,  173 


B. 


Bachelder  v.  Wakefield  1 24 

Back  V.  Stacy  582,  586,  671 

Badeau  v.  Mead  202 

Badger  v.  Boardman  31,  96 

Baer  v.  Martin        14,  121,  376,  661 
Bailey  v.  Fairfield  198 

V.  Phlla.  B.  &  W.  R.  R.  4  74, 
479,  482 

V.  Stephens 
Baird  v.  Hunter 

V.  Wells 
Bakeman  v.  Talbot 


Baker  v.  Brereman 


13,  118,  120 

414, 647 

409 

216,  243,  246, 

252,  254 

116, 118 


V.  Lewis     474,  476,  478,  484 


XVlll 


TABLE   OF   CASES   CITED. 


Baker  v.  Richardson  157,  579 

V.  St.  Paul         188,  189,  196 

Baldwin  v.  Buffalo  212 

V.  Calkins  144,  316,  349 

Ball  V.  Herbert  -  485 

Ballard  v.  Ballard  vale  Co.  608 

V.  Butler  636,  655,  665 

V.  Dyson  109,110,216,225, 

243 

Ballou  V.  Hopkinton  672 

Balston  v.  Bensted  452,  462 

Bangor  v.  Lansil  267,  268,  270,  272, 

293,  439 

Banks  v.  Am.  Tract  Society  583, 585 

V.  Ogden  197 

Bannon  v.  Angier  225,  641 

Barclay  v.  HoweH       186,  187,  189, 

195,  201,  2J5 

Road  y.  Ingliam       47  7,478 

Bardwell  v.  Ames        276,  280,  314, 

350,  352,  354,482,670 

Barker  u.  Richardson  157,579 

Barlow  v.  Rhodes  49 

Barnes  v.  Haynes  135 

V.  Ward  516 

Barraclough  v.  Johnson        183,  185 

Barrett  v.  Parsons  340 

Barrow  v.  Richards  22,86,594,  673 

Bartlet  v.  Harlow  38 

Bassett  v.  Company    269,  328,  441, 

443 
Baten's  Case         365,  469,  674,  675 
Bates  V.  Weymouth  Iron  Co.      398, 
407,416 
Battishill  v.  Reed  144 

Baune  Fishery  Case  492,  497 

Baxter  v.  Taylor  157,  663 

Bealy  v.  Shaw  154,  316,  353,  354 
Bean  v.  Coleman  35,  216,  252,  254 
Beard  v.  Murphy  430,439,514,517 
Beasley  v.  Clarke  153 

Beatty  v.  Gregory  24,  596 

V.  Kurtz  186 

Beaudely  v.  Brook  32,  40 

Bedford  v.  British  Museum  673 

Beeston  v.  Weate  376 

Beissell  v.  SchoU  335,  338 

Belknap  v.  Trimble     106,  145,  353, 

387 

Bell  V.  Elliott  426 

V.  Twentyman  658 

w.  Warden  112,115 

Bellinger  v.  Burying  Ground       228 

V.  N.  Y.  Cent.  R.  R.   276, 

282 


Bellows  y.  Sackett       290,  429,455, 

469,  473 

Bemis  v.  Clark  365,  664,  674 

V.  Upham  412,  672 

Bennett  v.  Costar  500 

Benson  v.  Soule  149 

Bentz  V.  Armstrong  431,  434 

Berry  v.  Carle  476,  4  79 

Bethune  v.  Turner  486 

Betts  V.  Davenport  125 

Bibby  V.  Carter  520 

Bickel  V.  Polk  485,  491 

Biddle  v.  Ash        105,  487,  590,  673 

Bigelow  V.  Battle  350 

V.  Newhall  409 

Binckes  v.  Pash  630 

Binney's  Case  313,  344,  427 

Binney  v.  Hull  601 

Bird  V.  Higginson  23 

Bissell  i;.  N.  Y.  Cent.  R.  R.        176, 

190,  200,  202 

Blackett  r,  Bradley  121 

Blain's  Lessee  v.  Chambers  44 

Blake  v.  Clark  44 

V.  Everett  129,  153 

V.  Rich  214,  215 

Blanchard  v.  Baker     277,  280,  287, 

298,  326,  334,  338,  350, 

358 

V.  Bridges    90,  156,  578, 

630 

Bland  v.  Lipscombe  7,  116,  489 

Blewett  V.  Tregonning         117,  119 

Bliss  V.  Hall  592 

V.  Rice  129,  146,  334,  344, 

345,  352 

Blodgett  V.  Royalton  198, 

Blundell  v.  Catterall    4  75,  482,  485, 

486, 490 

Blunt  V.  Aiken  666 

Boggs  V.  Merced  Mg.  Co.  421 

Bolivar  Mg.  Co.  v.  Neponset  Mg. 

Co.  129,  138,  139,  295,  349 
Bolt  V.  Stennett  186 

Bonomi  v.  Backhouse  512,  516, 

519,  560,  561,  563,  659,  660 
Borden  y.  Crocker  661,662 

V.  Vincent  139,  346 

Borst  V.  Empie  12,  27,  44,  350 

Boston  &  R.  ]\Iill-Dam  v.  New- 
man 397 
Boston  W.  P.  Co.  V.  B.  &  W.  R.  R. 

9 

Bowen  v.  Conner  26,  27 

V.  Team  3,  643 


CTABLE   OF   CASES   CITED. 


XIX 


Bower  r.  Hill  87,  110,  355 

Bowers  v.  Suffolk  Mg.  Co.  183, 194, 

204 
Bowes  V.  Ravensworth  258 

Bowman  v.  Middleton  401 

Boyce  v.  Brown  257 

Boyle  V.  Tamlyn  601 

Boynton  v.  Rees  345 

Brace  v.  Yale  43,  53,  133,  14  7,311, 
314,  318,  335,343 
Bradbee  v.  Christ's  Hospital       519, 

541 
Bradbury  v.  Grimsel  124,  152,  156 
Bradshaw  v.  Eyre  600 

Brady  v.  Weeks  664 

Brainard  v.  Conn.  R.  R.  R.  Co. 

232,  670 
Brakeley  v.  Sharp  5,  7,  55,  78,  85 
Branch  v.  Doane  140 

Brice  v.  Randall  121,  218,  222 

Bridfies  v.  Purcell  24,  310 

Brigham  v.  Smith  40,  220 

Bright  r.  Walker  152,  157 

Brisbane  v.  O'Neall     290,  357,  377, 

674 

Broadbent  v.  Ramsbotham  269,  270, 

347,  436,  438,  449 

Brondage  v.  Warner  542 

Brouwer  v.  Jones        30,  35,  86,  95, 

669 

Brown's  (Lady)  Case  387 

Brown  v.  Best       287,  332,  348,  382 

V.  Bowen  345,  663 

i;.  Bush  290,311,313 

V.  Chadbourne  474,477,480 

I'.  IlHus  462 

V.  Manning  175 

V.  Robins  563 

V.  Scofield  476 

V.  Stone  225,  248,  254 

V.  Thissell  28,  32 

V.  Windsor        519,  535,  548 

Bruning  v.  N.  O.  Canal  60 

Brunton  v.  Hall  216,  242 

Bryan  v.  Whistler  23,  604 

Buddington  v.  Bradley        308,  326, 

349,  358,  360,  384 

Buffum  w.  Harris     12,430,435,437 

BuUard  v.  Harrison       40,  219,  254, 

655 
BuUen  v.  Runnels  145,  358 

Bullock  tJ.  Wilson  474,  478 

Bulwer's  Case  662 

Burden  v.  Stein  266,  274,  671 

Burleigh  u.  Lumbert  417 


Burling  v.  Reed  682 

Burlock  V.  Peck  548 

Burnham  v.  Kempton  106,  146,  353 
V.  Story  413 

Burr  U.Mills  27,45,615 

Burrows  v.  Gallup  475 

Burwell  v.  Hobson         84,  327,  328, 

672 
Bury  V.  Pope  578 

Bush  V.  Sullivan  596 

Bushnell  v.  Proprietors,  &c.  43 

Butman  v.  Hussey        295,  320,  336 
Butz  V.  Ihrie  641 


C. 


Cady  V.  Conger  188,  209 

Caldwell  V.  Copeland  100,  121 

V.  Fulton  14,  663 

V.  Gale  665 

Caledonia  R.  W.  Co.  v.  Sprat    512, 

518,  622 

Call  V.  Buttrick  683 

Callaway  Co.  v.  NoUey        196,  212 

Campbell  v.  McCoy  389 

V.  Mesler      344,  542,  566, 

626 

V.  Race        .  254 

V.  Smith  25,  122,123,266, 

27  7,  354 

V.  Wilson       102,  103,  105 

Canal  Trustees  v.  Haven  284 

Canham  v.  Fisk    277,  316,  579,  607 

Capers  i'.  McKee  254,  255,  656 

i\  Wilson  223 

Carbrey  v.  Willis     45,  65,  153,  470 

Carleton  v.  Redington  24,  664 

Carlin  v.  Paul  75 

Carlyon  v.  Lovering  110,  355,  378, 

598 
Carpenter  v.  Gwynn  181,  183,  189 
Can-  V.  Foster  142,  144,  263,  637 
Carrig  v.  Dee  587 

Carson  v.  Blazer  393.  477,  478,  500, 

501 

Carter  v.  Murcot  491,  492,  493 

V.  Page  54 

Carver  v.  Miller  344 

Gary  v.  Daniels     20,  266,  274,  277, 

280,  290,  291,  311,  316,  321, 

327,  332,  334,  335,  340,  348, 

378,  381,  408,  411,  614 

Gates  V.  Wadlington  476,  501 

Cemetery  Co.  v.  Eden   87,  239,  249 

Chadwick  v.  Trower    521,  527,  530 


XX 


TABLE   OF   CASES   CITED. 


Chalk  y.  McAlily  129,329 

Chalker  v.  Dickinson  165,  492,  495 
Chambers  v.  Furry  485,  486 

Chandler  v.  Howland  321,  335,  340 

i;.  Thompson         576,  630 

Chapin  v.  Harris  36 

Chapman  i\  Gordon  202 

Charles  v.  Monson  &  B.  Mg.  Co.  416 

Charless  i;.  Rankin      516,  519,  522, 

525,  526,  527,  535 

Chase  v.  Sutton  Mg.  Co.      400,  624 

Chasemore  v.  Richards        101,  443, 

446,  462,  463,  466,  467 

Chatfield  v.  Wilson        12,  283,  287, 

295,  454,  457 

Cheeseborough  i>.  Green  568 

Cherrington  v.  Abney  Mil'  630 

Cherry  v.  Stein  470,  576,  588 

Chichester  v.  Lethbridge  40 

Child  V.  Chappell         180,  189,  190, 

191,  192,  202,  228,  663 

China  v.  Southwick  364 

Church  I'.  Burghardt  126,  127 

Cincinnati  v.  White    175,  179,  186, 

188,  189,  208,  209,485 

Clark  V.  Cogge  40,  220 

V.  Ru2ge  218 

V.  Way  8,  35 

Clash  V.  Martin  95 

Clavering's  Case  90 

Clay  V.  Thackrah  150,  158 

Clayton  v.  Corby  120 

Clement  v.  Burns  480,  482 

V.  Durgin  406 

V.  Youngman  663 

Clements  v.  Lambert  616 

V.  W.  Troy  176,191,192, 
202,  203 
Cleris  V.  Tieman  20 

Cleveland  v.  Cleveland  181,  207 
Clock  V.  White  401 

Coalter  v.  Hunter  105,  423 

Coburn  ex  parte  6 

Cobb  V.  Smith  403,  477,  481 

.  Cocheco  Mg.  Co.  v.  Whittier  51 
Cocker  V.  Cowpcr  23,  380 

Codling  V.  Johnson  86 

Codmau  v.  Evans  116,  25.'} 

Coe  I'.  Lake  Co.  670 

Coggswell  V.  Lexington  199 

Colburn  v.  Richards    298,  301,  365, 

676 
Colchester  v.  Roberts  87,  243,  667 
Colo  V.  Sprowl  188 

Coles  V.  Sims  97 


Coll  am  V.  Hocker  23 

Collier  v.  Pierce  587,  589 

Collins  u.  Benbury      476,491,494, 

495,  501 

u.  Prentice     38,40,41,218, 

220,  221,  222 

Colvin  V.  Burnet  124,  125,  129, 

168,  309 

Commissioners  v.  Taylor     186,   195, 

212 

Commonwealth  v.  Alburger        186, 

188,  207,  211 

V.  Chapin    4  74,  478, 

492,  502 

V.  Charlestown    475 

V.  Essex  Co.        400 

V.  Fisher     416,  478 

V.  Fisk        181,  188, 

189,  200,  205,  208 

V.  Kelly  202 

V.  Lovsr         119,  172, 

173 

V,  Newbury        116, 

171,  175,  180 

V.  Rush       191,  201, 

209,  211 

V.  Stevens  416 

V.  Upton  592 

V.  Wilson  481 

Compton  V.  Richards     77,  579,  581, 

617 
Comstock  V.  Van  Deusen  241 

Connehan  v.  Ford       179,  186,  188, 

189 

Converse  v.  Ferre  344 

Cook  V.  Hull  301 

V.  Stearns  23,  380 

Cook  Co.  V.  C.  B.  &  Q.  R.  R.         3 

Coolidge  j;.  Learned     107,116,486 

V.  Williams  491 

Cooper  V.  Barber  103, 128, 165,  446 

V.  Hall  296,  330 

V.  Hubbuck  578 

V.  Maupin  40,  219 

V.  Smith  102,  103,  108, 

128,  143,  486 

Copie's  Case  76,  130 

Corby  V.  Hill  210 

Corning  v.  Gould         102,  106,  635, 

638,  645 

V.  Lowerre  671,  672 

V.  Troy  Iron,  &c.,  Co.    150, 

277,  284,  285,  319 

Cortelyou  v.  Van  Brundt    110,  112, 

117,  121,  487,  490,  498 


tabl£  of  cases  cited. 


XXI 


Cotton  V.  Poc asset  Mg.  Co.  144,  417 

Coutts  V.  Gorham  '       77,  581 

Cowell  V.  Thayer         146,  332,  348, 

349,  360,  414 

Cowles  V.  Gray  183,  196 

V.  Kidder  334 

Cowling  V.  Higginson    110,  244,  252 

Cox  V.  Matthews  308,  326,  360, 

518,  576,  579 

V.  State  474,  479,  482 

Craigie  v.  Mellen  173 

Grain  v.  Fox  637 

Crittenden  v.  Field        53,  314,  346, 

672 

V.  Wilson  481 

Crittenton  v.  Alger      266,  274,  291, 

378,  381 

Cromwell  v.  Selden  350 

Crooker  v.  Bragg  299,  303 

Crosby  v.  Bessey  129,  140 

V.  Bradbury  44,  311 

Cross  V.  Lewis       152,  157,  576,  578 

Crossley  v.  Lightowler   65,  277,  279, 

291,  300,  640,  644,  646 

Grossman  v.  Vignaud  120,  182 

Crounse  v.  Wemple        88,  125,  259 

Cubitt  V.  Porter  534,  537,  542 

Cummings  v.  Barrett  281 

Currier  v.  Gale  1 60 

Curtice  v.  Thompson  665 

Curtis  V.  Angier  137,  139 

V.  Francis  608 

V.  Hoyt  203 

V.  Jackson  365 

u.  Keesler  108,111,477, 

485 

V.  Noonan  653 

Cuthbert  v.  Lawton  122,  143 

Cutter  V.  Cambridge  215 


D. 

Dalrymple  v.  Mead  478,  484 

Dana  v.  Valentine  142,  592,  674 

Dand  v.  Kingscote  251 

Dane  v.  Valentine  295 

Danforth  v.  Durell  182,  185 

Daniel  v.  North    105,  152,  156,  579 

V.  Wood  604 

Darcy  v.  Askwith  40 

Dare  v.  Heathcoat  110 

Darlington  v.  Painter  148,  357,  377 

Darwin  v.  Upton  103,  578 

Davenport  v.  Lamson  87,  242 


David  V.  New  Orleans  196,  202 

V.  2d  INIunicipality  203 

Davids  v.  Harris  550 

Davies'  Case  119 

Davies  v.  Stephens  157,  216 

r.  Williams  6  76,678 

Davis  V.  Brigham         110,  136, .138, 
139, 145 
v.  Fuller     277,313,326,332, 
334,  341 
V.  Getchell         266,  278,  280, 
290,  319,  335,  339 
V.  Winslow         296,317,335, 
336,  339,  416,  475, 
*        480, 481 
Dawes  v.  Hawkins  175 

Day  V.  Day  493 

V.  New  York  Central  Kail- 
road  1 8 
V.  Savadge                        7,  112 
Dekay  v.  Darrick                           160 
Delahoussaye  v.  Judice          19,  122, 
292,  433 
Delaney  r.  Boston   334,361,387,487 
Delaware  Canal  v.  Torrey            295 
Delaware,  &c.,  11.  R.  v.  Stump  491, 

494 
Denning  v.  Roome  186,  189 

Derrickson  v.  Springer  217 

Deshon  v.  Porter  350,  351 

Devonshire  v.  Eglin        90,  361,  389 
Dewey  v.  Williams  350 

De  Witt  V.  Harvey        12,  345,  350 
Dexter  v.  Prov.  Aqueduct  Co. 

452,  463 
Dickinson  v.  Grand  June.  Ca- 
nal    269,276,280,347,439,443, 
448,  449,  464 
Dickinson  v.  Worcester  272 

Dilling  V.  Murray  280,  338 

Doane  v.  Badger  254,  255,  344, 

357,  566,  655 
Dobson  V.  Blackmore  663 

Dodd  V.  Burchell         15,  41,  64,  76, 
130,  220,  614,  619 
V.  Holme    518,  519,  521,  527, 
528 
Doe  V.  Attica  209 

V.  Butler  643 

V.  Hilder  645 

V.  Lock  26 

V.  Reed  105 

V.  Wilkinson  126 

V.  Williams  267 

V.  Wood  5,  14 


xxu 


TABLE    OF   CASES    CITED. 


Dounell  v.  Clark  112,  118,  121, 

128,  598 

Dowling  V.  Hennings  136,  541,  546, 

548 
Downey  v.  Dee  604 

Drake  i'.  Wells  24 

Drewell  v.  Towler  596 

Drewett  v.  Slieard  134,  637 

Dubuque  v.  Maloney  9,  188,  195, 
209,  211 
Duchess  of  Norfolk  v.  Wiseman  8 
Dudden  v.  Guardians  of  Poor  269, 
347,  439,  448 
Duncan  v.  Loiich  625,  654 

Dunklee  v.  Wilton  R.  R.        44,  77, 
130,  613,  615,  620,  638 
Dugdale  ii.  Robertson  560 

Durel  V.  Boisblane      17,  43,  72,  590 
Durgin  u.  Lowell  178,182,204, 

205 
Durham  &  S.  R.  R.  v.  Walker 

26,  258 

Dutton  V.  Taylor  40 

Dwinel  V.  Barnard  183,  487 

V.  Veazie  487 

Dyer  v.  Depui      123,  365,  646,  647, 

676 

V.  Sanford         23,  26,  28,  627, 

63G,  639,  649,  650,  652 


E. 


Eames  v.  N.  E.  Worsted  Co.  404 
Earle  v.  De  Hart  268,  274,  378, 
379,  433,  434,  671 
Easter  v.  L.  M.  R.  Road  86,  603 
Eastman  v.  Company  481,  663,  664, 

665 
Eaton  V.  Swansea  Waterworks 

Co.  154,  155 

Eddy  V.  Simpson  269,  347 

Edson  V.  Munsell         101,  103,  105, 

124,  154,  156,  160 

EGrremont  v.  Pulman  658 

Elflridge  v.  Knott  25,  645 

Elliot  u.  Fair  Haven  R.  R.  402 

u.  Fitchburg  R.  R.     277,281, 

287,  295,  296,  676 

Elliott  V.  Rhett        72,  73,  130,  379, 

650,  677 

V.  Sallee  60,  84 

Elliotson  V.  Fretham  592 

Elli.s  V.  Carey  475,  4  76 

V.  Duii(;aii  455 


Emans  v.  Turnbull      102, 

Embrey  v.  Owen         276, 
296,  299, 
Emerson  v.  Wiley 
Ennor  v.  Barwell 
Eno  V.  Del  Vecchio     518, 

Esling  V.  Williams       124, 

Estes  V.  Troy 

Evans  v.  Dana  72,  87, 

V.  Jayne    539,  550, 
V.  Merriweather 

287,  333, 

Evansville  v.  Page 

Everett  v.  Dockery 

Ewart  V.  Cockrane 


116,  257, 

393,  597 

280,  282, 

307,  593 

231,  646 

283, 437 

519,  532, 

535,  536 

129,  144, 

353 

174 

122,  124 

553,  557 

276,  280, 

335,  347 

196 

45 

58,  64 


Farnum  v.  Blackstone  Canal      418, 

662 

V.  Piatt  255 

Farrand  v.  Marshall    512,  516,  520, 

525 

Farrar  v.  Cooper    43,  641,  646,  647 

Farrington  v.  Blish  414 

Fay  V.  Prentice  469 

Felton  V.  Simpson         122,  126,  165 

Fentiman  v.  Smith  23,  380 

Ferguson  v.  Witsell  78,  614 

Ferris  v.  Brown     100,  110,  118,  121 

Fessenden  v.  Morrison  357 

Fettretch  v.  Leamy  538 

Fifty  Associates  v.  Tudor  586 

Fish  V.  Dodge  665 

Fisk  V.  Huber  20 

V.  Wilber  350 

Fiske  V.  Framingham  Co.    402,  407 

Fisher  v.  Prowse  189,  210 

V.  Horicon  400 

Fitch  V.  Rawling  114 

V.  Seymour  406,  416 

V.  Stevens  414 

Flagg  V.  Worcester  272 

Flanagan  v.  Philadelphia    477,  478, 

479,  480,  481 

Flight  I'.  Thomas  129,  578,  592 

Foley  V.  Wyeth  512,  516,  519,  523, 

662 

Folger  V.  Worth  1 73 

Ford  V.  Lacy  393,  475 

V.  Whitlock  334,361,  380,389 


TABLE    OF    CASES    CITED. 


XXUl 


Fralloy  v.  Waters  655 

Frankuni  o.  Falmouth  308,  326 

Frasier  ().  Brown  431,441,  448,4()7 

Freer  v.  Stotenbur  597 

French  v.  Braintree  Mg.  Co.        32, 

408,  414,  415,  417, 

641,  646,  647 

V.  Camp  4  79 

V.  Carhart  615,619 

V.  Hayes  225 

V.  Marstin  87,  242,  243 

V.  Owen  24 

Frewen  v.  Philipps  152 

Frey  v.  Witman  385 

Foot  V.  N.  H.  &  N.  Co.  24 

Foster  v.  Browning  6,  24 

Prowler  V.  Dale  117 

Fox  V.  Hart  215,  640 

Foxhall  V.  Venables  117 

Fuhr  V.  Dean  23 

Funkhouser  v.  Langkopf  599 


G. 


Gage  V.  Pitts  148,  258 

Gannon  v.  Horgadon  271,  430 

Gardiner  v.  Tisdale     115,  179,  186, 

215 

Gardners.  Newburgh  266,276,280, 

481,  671 

Garland  v.  Hodsdon  351 

Garrett  i'.  Bailey  426 

V.  Jackson  129,  130 

V.  M'Kie  329 

Garrison  t).  Rudd        10,33,36,217 

Garritt  v.  Sharp  629 

Gates  V.  Blincoe  6 70 

Gate  ward's  Case  7,112,117 

Gavit  V.  Chambers       474,  478,  479, 

482 

Gay  V.  Baker  604 

Gayetty  v.  Bethnne     25,  40,  42,  50, 

106,  110,  123,  124,  134, 

165,  220,  221,  222,223, 

607,  622,  623 

Gayford  v.  Nichols  518 

Gentleman  v.  Soule      122,  124,  148 

173,  180,  191 

Gerber  v.  Grabel  590 

Gerenger  v.  Summers  142,  144 

Gerrard  v.  Cooke         254,  257,  654, 

655 
Gen-ish  v.  Brown  416,4  75,480,481 
Gibert  v.  Peteler  28,  35,  80,  95,669 


Gibson  v.  Brockway  44 

V.  Durham  132 

Gile  V.  Stevens  404,  413 

Gillett  V.  Johnson  269,  283,  303 

Gillis  V.  Nelson  655,  657 

Gilman  v.  Tilton  123,  334 

Glave  V.  Harding  35,  64,  72,  81,618 
Gleason  v.  Tuttle  133,  418 

Gloucester,  1st  Parish  of,  v.  Beach 

128, 138 
Goddard  v.  Dakin  83 

Godfreys.  Alton  180,  186,  197,478, 

484 
Golding  V.  "Williams    110,  124,  127, 

132 
Goodale  v.  Tuttle        431,  433,  439, 

442 

Goodman  v.  Gore  592 

Goodrich  v.  Burbank        11,  13,  598 

Goodtitle  v.  Alker  215 

Gough  V.  Bell  480 

Gould  V.  Boston  Duck  Co.  266,  280, 

281,  311,  314,  318,325,  326, 

333,  335,  340,  410 

V.  Glass  189 

V.  James  493,  494 

Gowen  v.  Phila.  Exch.  Co.         178, 

184,  185,  189,  207 

Graihle  v.  Hown  550 

Grant  v.  Chase        6,  32,  33,  49,  50, 

220,  585,  607,  613 

V.  Davenport  196,  482 

V.  Lvman  295 

Graver  v.  ShoU  295,  330 

Graves  v.  Amoskeag  Co.  39 

V.  Berdan  569 

Gray's  Case  36 

Gray  v.  Bartlett  596 

r.  Bond  153 

Greasly  v.  Codling  660 

Great  Falls  Co.  v.  Worster    38,  675 

Greatrex  v.  Hay  ward  368,  373 

Green  v.  Canaan  173,  182,  197,  202 

V.  Chelsea  118,119,123,172, 

179,  180,  189,  214,  253 

V.  Creighton  18,  35,  95 

V.  Putnam  601 

Greenleaf  r.  Francis    451,  458,  463 

Greenslade  i'.  Halliday  676 

Griffin  V.  Foster  122,  123 

Grimstead  v.  Marlowe  7,  8,  14,  111, 

114,  117,  489 

Grubb  V.  Bayard  14 

V.  Guildford  30 

Guernsey  v.  Rodbridges  167 


XXIV 


TABLE   OF   CASES   CITED. 


Gurney  t;.  Ford  204,595,6  72 

Guthrie  v.  New  Haven  197 

Guy  V.  Brown  615 

Gwinneth  v.  Thompson  344 


H. 


Haas  V.  Choussard        122,  280,  330 
Haight  V.  Price  123,  283 

Haines  v.  Roberts  561 

Haldeman  v.  Bruckhardt    442,  456, 

467 

Hale  V.  Oldroyd  357,  634 

Hall  V.  Chaffer  24 

V.  Lacy  310 

V.  Lund  58,  64 

V.  M'Leod    106,  108,  124,  132, 

169,  176,  184,  220 

V.  Swift  387,  637,  646 

Hamilton  v.  White  138,  262 

Hammond  v.  Fuller  671 

V.  Hall  449 

V.  Zehner  129,  133 

Hancock  v.  Wentworth  9,  214,607, 

622,  625,  660 

Harback  v.  Boston  9,  214 

Harbridge  v.  Warwick         131,  578 

Harding  r.  Wilson        225,  230,  246 

Hardy  i^.  Hollyday  117,  119 

Harlow  v.  Rogers  215 

Harper  i".  Parish  124 

Harrington  v.  Edwards       477,  481, 

484 

Harris  v.  Elliott  32,  214 

V.  Ryding  518,  560,  565 

Hart  V.  Baldwin  519,  535,  541 

V.  Conner  224 

V.  Evans  274 

V.  Vose  124,  309 

Hartshorn  v.  South  Reading       232, 

661,  670 

Hartzall  v.  Sill  326,  337 

JLirvard  College  v.  Stearns         232 

Harvie  v.  Rogers  643 

Harwood  v.  Benton        45,  72,  454, 

460 
Hastings  v.  Livermore         129,  295, 
025,  662,  663 
Hatch  V.  Dwight  320,  408,  646 

Hafhorn  v.  Stinson    42,45,405,417 
Hiiverstick  v.  Sipe  589 

Hawkins  ii.  Carl)ines  241 

lh\y  V.  Cohocs  Co.  516,  519 

Hayden  v.  Attleborough  204 


Hayes  v.  Richardson  28 

V.  Waldron       280,  281,  336, 

356 

Haynes  v.  Burlington  288,  290,  055 

V.  Thomas  187, 188 

Hays  V.  Hays  429 

Hazard  v.  Robinson      85,  106,  382, 

383,  607,  611,  614 

Hazen  v.  Essex  Co.      290,  398,  410 

Hazleton  v.  Putnam  24 

Heath  v.  Ricker  601 

V.  Williams       326,  332,  338, 

365,  070 

Hebert  v.  Hudson  433 

V.  Lavalle  599 

Hemphill  v.  Boston  185 

Hendrick  v.  Cook        200,  280,  281, 

295,  327,  329,  338,  355 

Hendricks  v.  Johnson  277,  335,  421, 

424,426 

Henning  v.  Burnet       240,  242,  251 

Henn's  Case  255 

Hetrick  v.  Deachler  307,  337 

Hewlins  v.  Shippam      2,  0,  23,  380, 

049 

Heyward  v.  Mayor  of  N.  Y.         402 

Hide  u.  Thornborouuli         513,518, 

519,  529,  532 

Highara  v.  Rabett  244,  668 

mWv.  Crosby  123,  149 

V.  Lord       4,  13,  110,  117,  118, 

597 

V.  Savles  413,  672 

V.  Ward  334 

Hillary  v.  Walker  644 

Hills  V.  Miller  7,  22,  30,  41,  86,  591, 

595,  672 

Hilton  V.  Granville  120,  121 

V.  Whitehead  563 

Hinchcliffe  v.  Kinnoul      40,  42,  79, 

010 
Hinckley  v.  Hastings  179 

Hobbs  V.  Lowell  179,  186,  190,  204, 

210 
Hobson  V.  Todd  129 

Hodges  V.  Hodges  414 

V.  Raymond  305,  408,  070 
Hodgkinson  v.  Ennor  288,  442,  402 
Hoffman  v.  Savage  0,  640 

V.  Stowe  380 

Hogg  V.Gill  132 

Holcroft  V.  Heel  102,  104 

Holdanc  v.  Trustees    176,  192,  200, 

206 
Hole  V.  Barlow  593 


TABLE   OF   CASES   CITED. 


XXV 


Holford  V.  Bailey  501 

V.  Hanklnson  631 

Holland  v.  Lono;  150,151,158 

Hollenbeck  v.  Kowley  214,  253 

Holmes  v.  Buckley  655 

V.  Drew  416 

V.  Goring  221 

V.  Jersey  City  203 

V.  Seely  121,  221,223,  254, 

255,  256 

V.  Seller  28 

Holsman  v.  Boiling  Spring  Co.  109, 

277,  279,  361,  671 

Honsee  v.  Hammond  281,  356 

Hook  V.  Smith  424 

Hooker  v.  Cummings  474,  478,  492. 

502 

Hooksett  V.  Amoskeag  Co.  481 

Hoole  V.  Attorney-General  189 

Home  V.  Widlake  260 

Hoskins  v.  Robins  120 

Houston  V.  Saffee  389 

Howard  y.  O'Neill  124 

Howe  V.  Alger  226,  229 

Howell  V.  King  87,  237,  242 

V.  M'Coy    52,  280,  281,  290, 

296 

Howland  v.  Vincent  516 

Howton  V.  Frearson       40,  218,  221 

Hoy  V.  Sterrett     326,  337,  466,  589 

Hubbell  V.  AVarren  93,  669 

Huber  v.  Gazley  188 

Hull  V.  Fuller  52 

Hull,  Mayor  of,  v.  Horner  100,  105, 

106, 168 

Hulme  V.  Shreve  295 

Humes  v.  Mayor  519 

V.  Shugart  423 

Humphries  v.  Brogden        120,  446, 

512,  516,  518,  519,522, 

533,  535,  560,565,569 

Hunt  V.  Peake     512,  516,  518,  521, 

522,  672 

V.  Whitney  415,  647 

Hunter  v.  Matthews  423 

V.  Trustees    of    Sandy 

Hill  175,  186,  190,  209 

Hurd  V.  Curtis         13,  70,  350,  384, 

646,  647 

Hurlburt  v.  Leonard    140,  309,  354 

Hutchinson  v.  Copestake  630 

Huttemeier  v.  Albro  57,  64,  75 

Hutto  V.  Tindall  189 

Hyde  v.  Jamaica  199,  220 

Hynds  v.  Shultz  146 


I. 


Imlay  v.  Union  B.  R.  R.  402 

Indianapolis  v.  Croas  187 

Ingles  V.  Bringhurst  557 

Ingram  v.  Dunnell  674 

Ingraham  v.  Hough     104,  124,  129, 

144,  152,  155 

V.  Hutchinson     287,  326, 

353,  354,  355,  467,  588 

V.  Threadgill       477,  492, 

501 

Ipswich  V.  Browne  498 


Jackson  v.  Halstead  267,  497 

V.  Harrington  332 

V.  Hathaway  32,  214 

V.  Keeling  502 

V.  Rounseville  604 

V.  Staccy  244 

V.  Vermilyea  44,  311 

Jamaica  Pond  v.  Chandler     37,  39, 

217 

James  v.  Hay  ward  676 

V.  Plant         50,  83,  607,  616 

Jamison  v.  McCredy  87,  237 

Jarvis  v.  Dean  190 

Jeffries  v.  Williams  520 

Jennings  i;.  Tisbury      177,178,204 

Jennison  v.  Walker      215,  225,  641 

Jerman  v.  Matthews  214 

Jeter  v.  Mann  123,  132 

Jewell  V.  Gardiner  408,  676 

Jewett  V.  Jewett  641,  646 

Johns  V.  Stevens  282,  287,  288, 

333,  335,  348,  353 

Johnson  v.  Atlantic  288 

V.  Jordan       45,  66,  78,  83, 

277,  291,  382,  587,  619 

V.  Kinnicutt  247 

V.  Kittredge  413 

V.  Lewis  360,  664 

V.  Rand  350,  358 

Johnston  v.  Roane  425 

Joliet  V.  Verby  199 

Jones  V.  Crow  356 

V.  Percival         115,  121,  215, 

225,  241,  596, 655 

V.  Powell  592,  593,  676 

V.  Robin  112 

V.  Tapling  628,  629,  630,  631 

V.Williams  678,683 


XXVI 


TABLE   OF   CASES   CITED. 


Jordan  v.  At  wood  218,  G15 

V.  Woodward  398,  416 

Judd  V.  Wells  336,  413 


K. 


Kaler  v.  Beaman  243,  350 

Karmuller  v.  Krotz  5,  27,  32 

Kauflfman  v.  Griesemer       268,  288, 

292,  310,  332,  357,  377, 

378,  429,  432 

Kelly  V.  Natoma  Water  Co.       325, 

410,  412 

Kennedy  v.  Jones  175 

Kent  V.  Waite       32,  119,  139,  149, 

490 
Kenyon  v.  Nichols  23,  72 

Kepley  v.  Taylor  426 

Kerr  v.  Kerr  1 7 

Ketaltas  v.  Penfold  543 

Kido;ill  v.  Moore  663 

Kieffer  v.  Irahoff  5,  57,  607 

Kllburn  v.  Adams        124,  131,  137, 

150 
Kilgour  V.  Ashcom  84 

Kimball  v.  Cocheco  R.  R.   Co. 

40,  218,  220 

V.  Gearhart  412 

V.  Kenosha  187 

King  t).  M'Cully  670 

V.  Northampton  185 

V.  St.  Benedict  210 

V.  Shufford  425 

V.  Tiffany    123,  320,  332,  341, 

348,  359 

Kirkham  v.  Sharp  87,  237 

Knight  V.  Halsey  107 

V.  Heaton         184,  211,  215 

V.  Wilder  478 

V.  Woore    •      243,  244,  668 

Knox  V.  Chaloner         416,  477,  460 

Kooystra  v.  Lucas  42,  49 


Lacy  V.  Arnett  24,  146,  389 

Lade  y.  Shepherd        178,187,214, 

253 

Ladv  Browne's  Case  387 

Lanib  v.  Crossland       102,  151,  159, 

167,  168 

Latnjiman  v.  Milks      17,  43,  52,  70, 

77,  386,  590 


Lane  v.  Carpenter  144 

Langford  v.  Owsley  365 

Langley  v.  Gallipolis  201 

Lansing  v.  Wiswall  33 

Lapham  v.  Curtis  353,  362 

La  Plaisance  Bay  Harbor  Co. 

V.  Monroe  4  74,  479 

Larnian  v.  Benson       476,  479,  482, 

484 
Larned  v.  Lamed  175,  260 

Lasala  v.  Holbrook        78,  512,  516, 

519 
Lattimore  v.  Davis  332,  429,  433 
Lavillebeuvre  v.  Cosgrove      21,  88, 

649 
Laumier  v.  Francis  9,  19,  290,  429 
Lawler  v.  Wells  480 

Lawrence  v.  Obee  636 

Lawton  v.  Rivers     32,  40,  123,  132, 

148,  218,  219,  221 
r,  Tison  175,176 
V.  Ward              87,  237,  242 

Lay  V.  King  491 

Leavitt  v.  Towle  39,  46 

Ledyard  v.  Ten  Eyck  208 

Lee  V.  Stevenson  386 

Le  Fevre  v.  Le  Fevre  392 

Leonard  i'.  Leonard    26,  40,  59,  65, 

149,  220,  255,  615 
V.  White  39 

Lethbrldge  v.  Winter  181 

Lewis  V.  Carstairs  33,  87,  239 

V.  Keeling  482,  485 

V.  Price  578 

V.  Stein  671 

Lewiston  v.  Proctor  172 

Lifbrd's  Case  39,  655,  656 

Liggins  V.  Inge    275,  627,  639,  647, 

650 
Light  V.  Goddard  98 

Lisle's  Lessee  v.  Harding  126 

Littlefield  D.  Maxwell  117 

Livett  V.  Wilson  102,  103,  105,  156 
Livingston  v.  Mayor  of  N.  Y.       1 95 
V.  Ten  Broeck    598,  600 
Lockwood  V.  Wood  7,  111,  113 

Logansport  v.  Dunn  202 

Loring  v.  Bacon  344,  568,  572 

Lonsdale  Co.  v.  Moies  12 

Lovell  V.  Smith  260,  634 

Luce  V.  Carley  124 

Luther  v.  Winnisimmet  Co.         268, 
271,  439 
Luttrel's  Case      110,  268,  357,  358, 
383,  629 


TABLE   OF   CASES   CITED. 


XXVll 


Lyman  v.  Arnold 


35,  39,  214,  215, 
217,  248,  254 


M. 

Liable  V.  Mattcson    10,  20,  337, 
Maddox  v.  Goddard 
Maerls  v.  Bicknell 
Magor  V.  Chadwick      290,  370, 
Mahan  v.  Brown  576, 

Manier  v.  Myers 
Mann  v.  Stephens 
Manning  v.  Smith  607, 

V.  Wasdale  115,  118, 

Marcly  v.  Shultz 

Marshall  v.  Trumbull     38,  218, 

Martin  v.  Bigelow 

V.  Goble 

V.  Jett        19,  288,  292, 

V.  Patin 

V.  Riddle  288,  290, 

Mason  lu  Caesar 

V.  Hill        275,  277,  281, 
299,  308,  324,  332, 
Massey  v.  Goyder         517,  519, 
Matts  V.  Hawkins 
Maxwell  v.  E.  R.  Bank 

V.  M'Atee       35,  214, 
252, 
Maynard  v.  Esher 
Mayor,  &c.  v.  Eslava 
M'Afee  v.  Kennedy 
M'Calmont  v.  Whitaker      311, 
M'Carty  v.  Kitchenman    55,  57 

M'Connell  v.  Lexington      186, 
M'Coy  V.  Danley  277,  327, 

M'Cready  v.  Thomson  110, 

M' Donald  v.  Bear  River  Co. 

V.  Lindall    216,  219, 

M'Dougle  V.  Clark 
M'Farland  v.  Stone 
M'Farlin  v.  Essex  Co.  149, 

496,  499, 
M'Gregor  v.  Waite        36,  152, 

M' Quire  v.  Grant         512,  516, 

M'llvaine  v.  Marshall 
M'Kee  v.  Garrett 
M'Keen  v.  Delaware  Division, 
&e. 


339 

44 
412 
3  74 
583 
122 

97 
616 
308, 
489 
146 
222 
318 
582 
332, 
433 
219 
429 
676 
290, 
354 
535 
537 

86 
216, 
254 
589 
478 
425 
333 
,64, 

72 
485 
328 
588 
629 
223, 
623 
426 
160 
492, 
501 
156, 
157 
518, 
519 
362 
132 

479 


M'Kellip  V.  McTlhcnny  389 

M' Kinney  v.  Smith       323,  412,  413 
M'Manus  v.  Carmichael      476,  478, 

482 

M'Tavish  V.  Carroll  44,  45,  55 

Mebane  v.  Patrick       124,  126,  131, 

132,  156,  157,160,  162,168 

Medford  v.  Pratt  124,  601 

Mellen  v.  Western  R.  R.  290 

Mellor  V.  Spateman  114,  660 

Melvin  v.  Lock  102 

V.  Whiting       149,  151,  156, 

159,  167,  491,  495,  497, 

499,  501 

Mendell  v.  Delano  27,  38,  627 

Mercer  v.  Pittsburg  187,  194 

Merritt  v.  Brinkerhoff  326,  338 

V.  Parker        280,  331,  358, 

360,  365,  677 

Mersey   &  Irwell  Nav.   Co.  v. 

Douglass  661 

Mcrtz  V.  Dorney  147 

Metropolitan  Asso.,  &c.  v.  Petch 

663 
Middleton  v.  Gregorie  23,  309,  354, 

390 

V.  Pritchard  480 

Miller  v.  Auburn  &  S.  R.  R.  23 

V.  Bristol  254,  361,  655 

V.  Ewing  69 

V.  Garlock         122,  124,  129, 

646 

V.  Laubach        288,  292,  429, 

430 

V.  Miller     214,  302,  307,  344 

Miner  v.  Gilmore  289,  344 

Minor  v.  Wright  433 

Missouri  Inst.,  &c.  v.  How  188,  190 

Moale  V.  Mayor,  &c.,  of  Baltimore 

229 
Moffett  V.  Brewer  676,  678 

Monmouth  Canal  v.  Harford       127, 

140 

Monongahela  Bridge  v.  Kirk      478 

Nav.  Co.  u.  Coon  327, 

488 

Monroe  ik  Gates 

Moor  V.  Veazie 

Moore  v.  Fletcher 

V.  Rawson 


V.  Webb 
V.  Wright 
Morgan  v.  King 
V.  Mason 


344 

477 

44,  311 

576,  578,  634, 

636,  649 

355,  361 

401 

476,  477,  482 

32,  48,  60 


XXVIU 


TABLE   OF   CASES   CITED. 


Morgan  v.  Moore  9,  214,  663 

V.  Reading     474,  478,  480, 

.      482 

Morris  v.  Commander  144 

V.  Edgington      49,  219,  221, 

223,  235 

Morse  v.  Copeland  23,  25,  650 

V.  Stocker  181,  204,  206 

Moulton  V.  Libbey  491,  502 

Mounsey  y.  Ismay  115 

Mowry  i'.  Sheldon        421,  647,  648 

Mumford  v.  Brown  344 

V.  Whitney  23,  380 

Munroe  v.  Stickney  295 

Munson  v.  Hungeiiford  477 

Murdock  v.  Stickney  398,  404,  408, 

416 
Murgatroyd  v.  Robinson      129,  348, 

355 
Murley  v.  M'Dermott  537,  540,548 
Muskett  V.  Hill  13,  118 

Mussey  v.  Prop.  Union  Wharf,    624 
Myers  v.  Gemmel  584 


N. 


N.  Albany  R.  R.  v.  Peterson,     451, 

457 
Napier  v  Bulwinkle  512,  530,  534, 
588,  589 
Nash  V.  Peden  132,  138,  173,  661 
National  Manure  Co.  v.  Donald  623 
Nelson  v.  Butterfield  133,  405,  407, 

417 

Newcomb  v.  Smith  400 

Newell  V.  Hill  603 

Newhall  V.  Ireson  295,  336 

New  Ipswich  Co.  v.  Batchelder    70, 

77,  83,  382 

New  Orleans  v.  U.  S.   186,  188,207 

New  River  Co.  v.  Johnson  443,  445, 

447,  464 

Nichols  V.  Avlor    105,  154,  168,  423 

y.  Liice  23,40,41,83, 

218,  221,  223 

Nicholas  v.  Chamberlain   45,  63,  70, 

77,  83,  386,  611,  614,  615 

Nicklin  V.  Williams  561,  659 

Nitzell  V.  l'a.si'hall  641,  646 

Norris  v.  Baker  676 

North  Eastern  R.  R.  v.  Elliott 

368,  512,  516,  518, 

522,  564 

Nortliam  v.  Hurley  387,  659 


Norton  v.  Volentine    334,  354,  361, 
368,  389,  664 
Noyes  v.  Ward  203,  208 

Nudd  y.  Hobbs      112,117,118,171 
Nuttall  V.  Branwell  385 

N.  Y.  Life  Ins.  &  Tr.  Co.  v.  Mil- 
nor  218,  221 


O. 


Oakley  v.  Adamson  42 

V.  Stanley  43 

O'Fallon  r.  Daggett    474,478,479, 
480,  483,  507 
Ogden  V.  Grove  220 

Okeson  v.  Patterson  123,  149 

O'Linda  j;.  Lothrop     214,  226,  253, 

596 
Olmstead  i\  Loomis  350 

Olney  y.  Fenner  106,  129 

V.  Gardner        124,  131,  143, 
150 
Omelvany  v.  Jaggers    287,  320,  329 
Orford,  Mayor  of,  v.  Richard- 
son 493 
Orleans  Navigation  Co.  v.  May- 
or of  N.  O.       14,  19,  23,  33,  292, 
429,  433 
Orman  v.  Day  544 
Ortman  v.  Dixon                   322,  413 
Osborn  v.  Wise      79,  225,  231,  254, 

655 
Oswald  V.  Grenet  208 

V.  Legh  105 

Oswego  V.  Oswego  Canal     191,  202 
Otis  V.  Hall  389 

Overton  v.  Sawyer  288 


P. 


Packer  v.  Welsted  40,  607 

Paige  V.  Weathersfield  198 

Pain  u.  Patrick  116,118,596 

Paine  v.  Boston  587 

Palins  V.  Heblethwait  383 

Palmer  Co.  v.  Ferrill  404 

Palmer  v.  Fleshees  518 

i;.  Fletcher  77,  518,  578,  579 

y.  Mulligan  317,478 

V.  Wetmore  585 

Panton  v.  Holland       317,  461,  516, 

519,  527 

Parker  v.  Boston  &  ^1.  R.  R.     457, 

459 


TABLE   OF   CASES   CITED. 


XXIX 


Parker  v.  Cutler  Mill-Dam  Co. 

491, 501 

V.  Foote    103,106,107,108, 

122,  124,  129,  168,  277, 

295,  576,  578,  583 

V.  Framingham        131,  156, 

226 

V.  Griswold       295,  296,  297 

V.  Hotchkiss     281,  335,  336, 

354 

V.  Nightingale       30,  31,  35, 

91,  96,  591,  669 

V.  Smith  226,  582 

Parks  V.  Newburyport  270,  439 

Partridge  v.  Gilbert    532,  534,  535, 

542,  544,  547,  626 

V.  Scott        513,  519,  522, 

525,  532,  563 

Patten  v.  Harden  336,  339 

Patterson  v.  Arthurs  70 

Pawlet  V.  Clark  175,  185,  186 

Payne  v.  Shedden  263 

Peables  v.  Hannaford  501 

Pearce  v.  M'Clenaghan  607 

Pearsall  v.  Post    HO,  115,  116,  117, 

152,  158,  179,  485,  487,  490 

Pearson  v.  Spencer    40,  41,  59,  71, 

223,  619 

Peck  V.  Bailey  510 

V.  Day  642 

V.  Smith  475 

Penn.  R.  R.  v.  Jones  55,  57 

Penruddock's  Case      664,  675,  677, 

683 

People  V.  Beaubien  202 

V.  Canal  Comrs.        478,  480 

V.  Cunningham  481 

V.  Jackson  206 

V.  Jones  199,  202 

V.  Law  402 

V.  Piatt  476,  478 

V.  St.  Louis       474,  478,  482 

V.  TIbbetts  475 

Perkins  v.  Dow  283,  298 

V.  Dunham  633,  646 

V.  Perkins  598 

Perley  v.  Chandler       214,  253,  255 

V.  Langley         11,  111,  116, 

117,  118,  119 

Pernam  v.  Wead  221 

Perrin  v.  Garfield        3,  43,  53,  125, 

129,  133,  147,  149,  152,  343 

Perry  t;.  Fitzhowe        675,676,678 

V.  Worcester  290 

Peter  v.  Daniel     117,  357,  654,  656 


Pettee  v.  Hawcs  45,  314 

Pettingell  v.  Porter  55 

Peyton  V.  Mayor  517,526,534 

Pheysey  v.  Vlcary     17,  70,  81,  220, 

386 

Phillips  V.  Boardman  54  9 

V.  Bowers  25  7 

V.  Phillips  57,  125,  615 

V.  Rhodes  597 

Pickard  v.  Collins  576 

Pickering  v.  Stapler  32 

Pickett  V.  Condon  665 

Pierce  v.  Cloud  124,  130 

V.  Sellech  40,  137,  221 

Pierre  v.  Fernald         122,  156,  587 

Pillsbury  v.  Moore         106,  646,  664 

Piggott  V.  Stratton  97,  579 

Pinnington  v.  Galland    40,  222,  223 

Pitkin  V.  Long  Island  R.  R.    14,  18, 

23 
Pitts  V.  Lancaster  Mills  339,  343 
Pixley  V.  Clark  364 

Plant  V.  James  42,  49,  225 

Plasterers'  Co.  v.  Parish  Clerks' 

Co.  578 

Piatt  V.  Johnson  280 

V.  Root  307,317 

Plitt  V.  Cox  75 

Plumer  t\  Brown  151 

V.  Harper  664 

Plumleigh  v.  Dawson   266,  277,  284, 

295,  312 

Polden  t'.  Bastard       17,41,51,59, 

64,  506 

Pollard  V.  Barnes  140,  141,  595 

Polly  V.  Mc Call    122,124,128,129, 

140 
Pomeroy  v.  Mills  179,  209,  214, 

253 
Pomfret  v.  Ricroft  40,  613,  654 

Poole  V.  Huskinson  183,  185 

Pope  r.  Devereux        176,258,634, 

637 

Porter  v.  Allen  4  78 

Portmore  v.  Bunn  37 

Post  y.  Pearsall  8,11,115,117, 

118,  186,  189,  190,  478 

Potter  ?;.  North  110 

Powell  V.  Bajiji  155 

V.  Thomas  90 

Pratt  V.  Brown  400 

V.  Lamson   136,  275,  284,  285, 

344,  350,  393 

Preble  v.  Reed  45,  615 

Prescott  17.  Phillips  123,  644 


XXX 


TABLE   OF   CASES   CITED. 


Prescott  V.  White          31, 

290,  357, 

Rex  V.  Cremden 

490 

377 

654,  676 

V.  Cross 

592 

V.  Williams      31, 

290,  291, 

V.  Hudson 

178 

310,  357,  378, 

655,  676 

V.  Pappineau 

676 

Price  V.  McConnell 

538 

V.  Rose  well 

675 

676 

Prickman  v.  Tripp 

449 

V.  Smith 

475, 

476 

Prince  v.  Wilbourn 

132 

V.  Trafford 

328 

Pringle  v.  AVernham 

582 

Reynolds  v.  Clark 

471 

Pritchard  v.  Atkinson 

104,  189 

V.  M' Arthur 

267 

Private  Road,  Case  of      33,  36,  87, 

Rhea  v.  Forsyth   190,  192, 

C70, 

675 

217 

Rhodes  ii.  McCormick 

463, 

565 

Proctor  V.  Hodgson 

218 

V.  Otis       475,  476, 

477, 

480 

V.  Lewiston 

181,  183 

Rice  V.  Ruddiman 

479 

482 

Proprietors,   &c.   v.  Nashua  R.    R. 

Richards  v.  Dutch  Church 

604 

288 

V.  Rose      56,  63, 

518, 

532, 

Proud  V.  Mollis 

243 

546 

Providence  Gas  Co.  v.  Thurber  601 

Richardson  v.  Pond 

596, 

672 

Pue  V.  Pue 

129 

V.  Vt.  Cent.  R 

.  R. 

516, 

Pugh  y.  Wheeler  277,281, 

287,  288, 

518,  519, 

523, 

527 

296,  307,  325,  334, 

335,  353 

Richart  v.  Scott 

519, 

521 

Pyer  v.  Carter    41,  62,  78 

,  81,  130, 

Rickard  v.  Williams     103, 

123, 

129 

386,  618 

Rider  v.  Smith 

655 

Ripka  V.  Sergeant        282, 

329, 

330 

Q. 

Ritger  v.  Parker         4,  32 
Rives  V.  Dudley 

165 

607 
201 

Quimby  v.  Vt.  Cent.  R.  R 

214 

Riviere  v.  Bowers 

7  7, 

580 

Roath  V.  DriscoU           452, 

460 

464 

Bobbins  v.  Jones           189, 

210, 

655 

R. 

Robins  v.  Barnes   77,  387, 

579, 
607, 

582, 
614 

Race  V.Ward           7,116 

275,  625 

V.  Borman 

214 

V.  Wood 

489 

Roberts  o.  Haines 

560 

Rackley  v.  Sprague 

42,  45 

V.  Karr             181, 

225 

228 

Radcliff 's  Exrs.  v.  Mayor, 

&c.    445, 

Robeson  v.  Pittenger 

590, 

673 

455,  516,  519, 

520,  584 

Rochdale  Canal  v.  Radcliffe 

110, 

Ragan  v.  M'Coy 

188 

113 

Raikes  v.  Townsend 

675 

Rogers  v.  Bancroft 

350, 

352 

Randall  v.  McLaughlin 

65,  71 

V.  Brenton 

112 

Rankin  v.  Iluskisson 

97 

V.  Bruce 

359, 

366 

Rawlyn's  Case 

90 

V.  Page 

122, 

354 

Rawstron  v.  Taylor      269 

270,  276 

V.  Sawin 

587 

347,  439 

V.  Taylor           513, 

522, 

563 

Ray  V.  Fletcher            146, 

332,417 

Rood  V.  Johnson 

350 

V.  Lynes 

576,  590 

Rooker  v.  Perkins 

25, 

404 

Rector  V.  Ilartt 

195,  207 

Rose  V.  Bunn         119,172, 

598, 

604 

Regiua  V.  Chorley        623, 

637,  646 

Rosewell  v.  Pryor         579, 

585, 

665 

V.  Cluworth 

485 

Ross  V.  Horsey 

362 

V.  Dukiiifield 

197 

Rotheram  v.  Green 

600 

V.  J'ratt 

243 

Roundtree  v.  Brantley 

129, 

295 

Rcid  V.  (iid'onl 

671 

Rowan  v.  Portland      185, 

186, 

188, 

Ri^ignolds  V.  Edwards 

260 

194,  201, 

202, 

211 

Reimcr  v.  Stubcr         132, 

156,  15  7, 

Rowbotham  v.  Wilson       3 

,  6,  9 

,  90, 

160,  163 

120,  277,  512, 

516, 

522, 

Renshaw  v.  Bean         576, 

578,  630 

558,  560,  561, 

562, 

563, 

Rerick  v.  Kern 

24,  389 

578, 

592, 

598 

TABLE   OF   CASES   CITED. 


XXXI 


Rowe  V.  Addison  288 

V.  Granite  Bridge  475 

Rowland  u.  Wolfe  132 

Rugby    Charity    v.    Merryweather, 
178,  181,  190 
Runcorn  v.  Doe  157 

Rundle  v.  Delaware,  &c.  Canal  662 


Runnels  v.  Bullen 

Russell  V.  Harford 
V.  Jackson 
I'.  Scott 

Rust  V.  Low 

Rutland  v.  Bowler 


43,  338,  344 

60 

221,  223 

33,48,311 

104,  GOl,  604 

326 


336 

346 
426 

401 

118 

238 

664 

683 

414 

380 

277, 

295, 

Sackrider  v.  Beers 
Sadler  v.  Langham 
Sale  V.  Pratt 
Salisbury  v.  Andrews 
Salmon  v.  Bensley 
Sampson  v.  Bradford 
V.  Burnside 
V.  Hoddinott 

296,  300,  307,  375 

Sanborn  v.  Chicago,  &c.  R.  R.     196 

Sargent  v.  Ballard       102,  122,  124, 

149,  154,  168,596 

V.  Gntterson  118 

Saunders  v.  Newman    332,  358,  382 

Schenley  v.  Commonwealth        156, 

157,  180,  189 

Scott  y.  State       179,180,186,188, 

189 
V.Wilson  479 

Screven  v.  Gregorie  219 

Schurmeier  v.  St.  P.  &  Pac.  R.  R. 

186,  196,  284,  475,  478 
Schuylkill  Nav.  Co.  v.  Stoever  240 
Seabrook  v.  King  220 

Seavey  v.  Jones  44 

Seeley  v.  Bishop  40,  221 

Seibert  v.  Levan  45,  613,  614 

Seidensparger  v.  Spear       133,  405, 

417 
Selby  V.  Robin?on  116 

Selden  v.  Del.  &  H.  Canal      23,  24, 

281 
Senhouse  v.  Christian      11,  31,  241, 

257 

Seymour  v.  Carter  406 

u.  Courtenay  495,497,499 

V.  Lewis  21,46,59,70,84, 

220,  386 


Seymour  v.  M'Donald 

Shackleford  v.  CoiTey 

Shadwell  v.  Hutchinson 

Sharp  V.  Hancock 

Shaw  V.  Crawford  189, 

V.  Etheridge  58,  83, 

V.  Wells  404, 

Shears  v.  Wood 

Shed  V.  Leslie 

Sheldon  v.  Rockwell 

Shepherd  v.  Watson 

Sherman  v.  Tobey 

Sherred  v.  Cisco  537,  5a0,  544, 

Sherwood  v.  Burr  25,  122,  326, 
Shields  v.  Arndt  268,  439,  648, 
Short  V.  Taylor  90,  392, 

V.  Woodward 
Shreve  v.  Voorhees     277,  280, 
325,  326,  330,  348, 
Shrieve  v.  Stokes         519,  521, 
527, 
Shroder  v.  Brenneman 
Sibley  v.  Ellis 
Simpson  v.  Justice 
V.  Seavey 
Sims  V.  Davis 

Skeen  v.  Lynch  183, 

Slack  V.  Lyon 
Slingsby  v.  Barnard 
Slowman  v.  West  121, 

Smart  v.  Morton  560, 

Smiles  v.  Hastings       220,  223, 

Smith  V.  Adams  287,  452, 

V.  Agawam  Canal     321, 
334, 
V.  Connely 
V.  Elliott 

V.  Gatewood  7,  111, 

V.  Goulding 
V.  Hardesty 
V.  Higbee 
V.  Kemp 
V.  Kenrick 


V.  Kinard 

V.  Ladd 
V.  Lee 
V.  Miller 


27,  32, 

495,  497, 

446,450, 

522, 

40,  118,  119, 

132, 

27, 

105,  110,  125, 


V.  Olmstead 
V.  Porter 
V.  Rome 


217, 


95 
426 
663 
628 
478 
614 
407 
335 
351 
671 
225 
428 
550, 
G25 
353 
674 
671 
406 
296,' 
353 
522, 
541 
242 
102 
672 
360 
132 
188 
414 
516 
666 
565 
227, 
641 
463 
327, 
364 
424 
666 
116 
406 
523 
137 
501 
518, 
575 
121, 
172 
216 
258 
153, 
156 
426 

46 
254 


XXXll 


TABLE   OF   CASES   CITED. 


Smith  V.  Ross 

146 

V.  State 

189 

Snow  V.  Cowles 

664 

V.  Parsons 

335,  336,  355 

Snowden  v.  Wilas  24,  310 

Society,  &c.  v.  Morris  Canal  Co.  280 
Solomon  V.  Vintners'  Co.  153,  154, 
512,  518,  531,  533 
Somerset  v.  Fogwell  23,  495,  497 
Soule  t'.  Russell  291,  362 

Sowers  V.  ShifF  19 

Spear  y.  Bicknell  172 

Sprague  v.  Worcester  290,  481 

Spring  V.  Russell  479 

Springfield  v.  Harris    319,  335,  337, 

339 
Squire  v.  Campbell  234,  579 

Stacey  v.  Miller  183 

Stackpole  v.  CuHis  43,  53,  145, 

311 

Stafford  v.  Coyney       181,  183,  184 

Stansell  v.  Jollard        519,  522,  532 

Staple  V.  Heydon    32,  40, 42,  50,  86, 

121,*165,  215,  219,  221,  225 

V,  Spring  663 

Star  V.  Rookesby  601 

State  V.  Atherton  180,  190,  191 

V.  Campton  189 

V.  Catlin  209 

V.  Gilmanton  268,  476 

V.  Hunter  173 

u.  Jefcoat  217 

?;.  Marble  173,189 

r.  Mc Daniel  120,174 

V.  Northumberland  254 

V.  Nudd  189 

V.  Pettis  252 

V.  Trask       188,  189,  200,  208 

V.  Wilkinson        175,  186,  209 

V.  Wilson  115 

Stearns  v.  Mullen  46 

Stedman  v.  Southbridge  172 

Steffy  V.  Carpenter  129 

Stein  V.  Burden    122,  144,  266,  274, 

287,  289,  295,  334 

Stetson  V.  Howland  438 

Stephens  v.  Benson  24 

Stevens  v.  Stevens  670,  674 

V.  Taft  103 

Stiles  V.  Hooker  346 

Stillman  v.  White  Rock  Co.        136, 

154,  662 

Stokes  V.  Appomato.\  Co.  1 24 

Stockoe  V.  Singers        20,  277,  578, 

633,  637 


Stockport  Water  Works  v.  Pot- 
ter 594 
Stockwell  V.  Hunter  572 
Stone  V.  Jackson  205 
Story  V.  Odin                   77,  585,  590 
Stout  V.  M' Adams                        331 
Stowell  V.  Flagg                            397 
Strayan  v.  Knowles                      563 
Street,  Mercer,  Matter  of             229 
17th,  Matter  of        195,  2l4 
29th,  Matter  of  195 
32d,  Matter  of  195 
39th,  Matter  of  195 
Strickler  v.  Todd    42,  104,  106,  110 
Strout  V.  Millbridge                       328 
Stuart  V.  Clark                               476 
Stuyvesant  v.  Woodruff                123 
Suffield  v.  Brown    17,22,41,45,62 
Sumner  v.  Foster                          366 
V.  Stevens                         127 
V.  Tileston       126,  326,  408 
Sury  V.  Pigott        63,  276,  382,  386, 
387,  463,578,  601,  607,  611, 
613,  614 
Sutton  V.  Clarke                           661 
Swansborough  v.  Coventry     43,  77, 
579,  580 
Swartz  V.  Swartz  44 
Symmes  v.  Drew  6 


Tabor  v.  Bradley  39,  71 

Talbot  V.  Hudson  400 

Tallmadge  v.  E.  River  Bank         94, 

184,  209,  669 

Tarrant  v.  Terry  90 

Tate  V.  Ohio  187 

Taylor  v.  Hampton  634,  638 

V.  Porter  401 

V.  Townsend  221 

V.  Whitehead    254,  255,  564 

Tenant  v.  Gold  win  42,  45,  567, 

573, 579 

Thacher  v.  Dartmouth  481 

Thayer  v.  Arnold  601 

V.  Payne  41,  66,  78 

Thomas  v.  Brackney  281,  282, 

326,  336 

V.  Hill  638 

V.  Lovell  13 

V.  Marshfield  110,  122, 

124,  128,  138,  598 

V.  Thomas      469,  4  71,  607, 

631 


TABLE   OF   CASES   CITED. 


XXXIU 


Thompson  v.  Banks  39,  44 

V.  Crocker  296,  330, 

363,  661,  662 

V.  Gibson  666 

r.  Gregory  23,  47 

V.  Moore  404 

Throckmorton  v.  Tracy  497 

Thurber  v.  Martin        318,  320,  340 

Thurman  v.  Morrison  480 

Thurston  v.  Hancock  123,  512, 

515,  519,  585 

Tickle  t'.  Brown  124,153 

Tillman  v.  People         199,  202,  206 

Tillotson  V.  Smith        288,  331,  365, 

659 

Tinkham  v.  Arnold      103,  133,  417 

Tinsman  v.  Belvidere  663 

Todd  V.  Flight  665 

Tourtellot  v.  Phelps      52,  277,  280, 

347,  350,  413 

Townsend  v.  Downer  108 

V.  M'Donald       106,  309, 

356,  361,  384,  387,  389,  646 

Tracy  v.  Atherton         40,  105,  106, 

108,  122,  124,  149,  155,  160, 

162,  218,  219 

Trammell  v.  Trammell  24 

Trask  v.  Ford  133 

V.  Patterson  218,  220 

Treaty.  Lord  416,477 

Trower  v.  Chadwick  519,  535 

Truscott  V.  Merch.  Tailors'  Co.   577 

Trustees,  &c.  v.  Dickinson  268, 

284, 392 

V.  Otis  199 

Tucker  v.  Jewett  326,  382 

V.  Newman  469,  663 

Tudor  Ice  Co.  v.  Cunningham     247 

Tufts  V.  Charlestown  226 

Tulk  V.  Moxhay  97 

TurnbuU  v.  Rivers  40,  132,  219 

Tyler  r.  Bennett  118 

V.  Hammond  607,  609 

V.  People  476 

V.  Wilkinson       102,  163,  168, 

276,  280,  296,  297,  318,  333, 

334,  382,  388 

Tyrringham's  Case  84,  600 

Twiss  V.  Baldwin         280,  307,  326, 

338 

u. 

Underwood  v.  Carney       32,  48,  86, 
214,  253 

c 


Underwood  v.  N.  W.  Scythe  Co. 

133,417,418 

V.  Stuyvesant    195,  228 

United  States  v.  Ames  418 

V.  Appleton      32,  52, 

77,  518,  532,  578,  579,  591, 

596 

United  States  v.  New  Bedford 

Bridge  481 


Valentine  v.  Boston     119,  173,  174, 

178 
V.  Piper  102,  103 

Van  Bergen  v.  Van  Bergen  671 
Vandenburgh  v.  Van  Bergen  284 
Van  Hoesen  v.  Coventry  296,  306, 
313,  336 
Van  Meter  r.  Hankinson  227 

Varick  v.  Smith  401 

Varnum  v.  Abbot  38 

Veazie  i;.  Dwinel  356,402,408,409, 
416,  475,  476,  480,  481 
Viall  V.  Carpenter  220,  221 

Vick  V.  Vicksburg  188,  195,  202 
Vickerie  v.  Buswell  42,  51,  53,  146 
Vincent  v.  Michell  470 

Vinton  i'.  Welsh  502 


w. 

Wadsworth  v.  Smith  476 

V.  Tillotson       270,  277, 

283,  296,  307 

Waggoner  v.  Jermaine  666 

Wakely  v.  Davidson  350 

Walker  V.  Shepardson  4  76 

V.  Worcester  230,  246 

Wallace  v.  Fletcher    106,  109,  158, 

160,  162,  169 

Wallis  V.  Harrison  7 

Walter  v.  Selfe  593 

Walters  v.  Pfeil  527,  529,  535 

Ward  V.  Cresswell  491,  495 

V.  Davis      180,  187,  188,  190 

V.  Hustis  403,  477 

V.  Metcalfe  268 

V.  Neal  583,  590 

V.  Robins  307,  578 

V.  Ward  645 

Wardle  v.  Brocklehurst  61,  83,  370 

Ware  v.  Brookhouse  135 

Warner  v.  Green  216 


XXXIV 


TABLE   OF   CASES   CITED. 


"Warren  v.  Jacksonville        175,  188 

V.  Matthews  491 

Warring  v.  Martin  330 

Watertown  Trustees  v.  Cowen  186, 

201,  210,  211,  673 

Waters  v.  Lilley       7,  117,  486,  492 

Watkias  y.  Peck      36,38,124,125, 

151,  156,159,  167,  168, 

353,  376,  379 

Watson  V.  Bioren  33,  86,  87 

Watt  V.  Trapp  132,  142 

Waugh  V.  Leech  180,  197 

Weale  v.  Lower  90 

Webb  V.  Bird  101,592 

r.  Portland Mg.  Co.  277,  295, 

296,  307 

Webster  v.  Fleming  388 

V.  Stevens     532,  537,  539, 

541,  543 

Weekly  v.  Wildman    116,  117,  489, 

598 

Welcome  v.  Upton  11 

Wellington  Petitioners  201 

Wells  V.  Ody  582 

Welton  V.  Martin  295 

Wentworth  v.  Poor  360,  405 

V.  SandfordMg.  Co.  417 

Westbrook  v.  North  214 

Westfali  v.  Hunt  202 

Weston  V.  Alden  297 

V.  Sampson  491 

Wetmore  v.  Law  402 

V.  White  42 

Weyman  v.  Ringold  543 

Wheatley  v.  Baugh      165,  269,  347, 

452,  456,  459,  465 

V.  Chrisman         134,  136, 

335, 380 

Wheeler  u.Ahl  337 

V.  Worcester  272,  290 

Whetstone  v.  Bowser  456 

Whipple   V.    Cumberland   Mg. 

Co.  295 

White  V.  Bass  45,  77,  220,  222,  578, 

579,  618 

V.  Chapin  77,  130 

V.  Crawford  10,  72,  118,  641, 

646 

V.  Flannigain  229 

V.  Leeson     81,  218,  221,  233 

Whitehead  v.  Garris  45 

Whitman  v.  Gibson  97 

Whitney  v.  Lee  SO,  86 

V.  Olney  43 

V.  Union  R.R.  30,591,595 


Whittler  v.  Cocheco  Mg.  Co.      144, 

145,  347,  350,  359,  366 

V.  Stockman  117 

Whalley  v.  Tompson  49 

Wickersham  v.  Orr  24 

Wickham  v.  Hawker  7,  26,  35,  119 

Wigford  V.  Gill  677 

Wiggens  v.  Tallmadge  206 

Wilde  V.  Minsterley  514 

Wild's  Case  600 

Wilkinson  v.  Leland  402 

V.  Proud  121,  558 

Wilklow  V.  Lane  663 

Williams  v.  Cummington      173,  478 

V.  Gale  332 

V.  Groncott  564 

V.  Jersey  90,  670 

V.  Morland     275,  277,  296 

V.  Nelson      129,  133,  147, 

149,  349,  398,405,  415, 

416,  417,  646 

V.  Safford       40,  254,  257, 

655 

Wilmarth  v.  Knight  405,  406 

Wilson  V.  Blackbird  Creek  481 

V.  Cockran  214 

V.  Forbes  475,  477 

r.  Willes  120 

V.  Wilson  104,  106 

Wiltshire  v.  Sidford  534,  540 

Winkley  v.  Salisbury  Mg.  Co.    406, 

413 

Winnipiseogee  Co.  v.  Young       106, 

142,  149 

Winship  v.  Hudspeth  143,  144 

Winslow  V.  King  14,  214 

Winter  v.  Brockwell  650 

Winthrop  v.  Fairbanks  27 

Winton  v.  Cornish  572 

Wissler  v.  Hershey  218 

Witter  V.  Harvey  206' 

Wolcott  Co.  V.  Upham  341,  407 

Wolfj;.  CofFey  426 

Wolfe  V.  Frost    3,  6,  24,  93,  96,  119 

Wood  V.  Copper  Miners  Co.        628 

V.  Edes  331 

V.Kelly  142,405,417 

V.  Leadbitter  23 

V.  Sutcliffe  355,  671 

V.  Veal  105,  157 

V.  Waud    269,  276,  280,  290, 

295,  307.  318,  368,  370, 

382,  471,  593 

Woodbury  v.  Short       361,  389,  392 

Woodman  v.  Tufts  659,  664 


TABLE    OF    CASES    CITED. 


XXXV 


Woodward  v.  Suly  24 

Woodyer  v.  Hadden     189,  190,  206 
Woolard  v.  M'CulIouo;h  189 

Wooster  v.  G.  Falls  Mg.  Co.       418 
Worcester  v.  Green  601 

Worrall  v.  Rhoades  129,  132 

Worster  v.  Winnipiseogee  Lake 

Co.  418,  661 

Worthington  v.  Gimson     50,  58,  64 

Wright  V.  Freeman      588,  634,  646 

V.  Howard       122,  275,  277, 

281,  296,  309,  348,  354 

V.  Moore  122,  144 

V.  Rattray  121,  666 

V.  Tukey  188,200,  204 

V.  Williams      355,  378,  578 

V.  Wrijrht  603 


Wyatt  V.  Harrison  516,  520 

Wyman  v.  ]\layor  of  N.  Y.  1 95 

Wynkoop  v.  Burger  225,  254 


Y. 


Yard  v.  Ford 


103,  105,  124,  129, 

168 

Yates  v.  Judd  196 

Yeakle  u.  Nace  642 


Zinc  Co.  V.  Franklinite  14,  558,  560 
Zusenbuhler  v.  Gillim  557 


THE    LAW 


OF 


EASEMENTS   AND   SERVITUDES 


CHAPTER    I. 

OF  THE  NATURE,  CHARACTER,  AND  MODE  OF  ACQUIRING 
EASEMENTS  AND  SERVITUDES. 

Sect.  1.  Nature,  Classification,  and  Qualities  of  Easements,  &c. 

Sect.  2.  Incidents  to  acquiring  Rights  of  Easements,  &c. 

Sect.  3.  Of  acquiring  Easements  by  Grant. 

Sect.  4.  Of  acquiring  Easements  by  User  and  Prescription. 

Sect.  5.  Easements  by  Public  Prescription  and  Dedication. 

SECTION  I. 

NATURE,  CLASSIFICATION,  AND  QUALITIES  OF  EASEMENTS,  ETC. 

1.  Introductory. 

2.  Easements  and  Servitudes  defined. 

3.  A  Profit  a  prendre, — how  far  an  Easement. 

4.  Servitudes  under  the  Civil  Law  defined. 

5.  Easements  distinguished  from  Licenses. 

6.  Custom  distinguished  from  an  Easement. 

7.  When  Profit  a  prendre  an  Easement,  and  when  an  Estate. 

8.  In  what  sense  Courts  use  Easements  and  Servitudes. 

9.  Easements  distinct  from  General  Ownership  of  Land. 

10.  Two  Estates  implied  by  Easement,  dominant  and  servient. 

11.  How  far  Easements  may  be  created  in  gross. 

12.  When  an  Easement  in  ^oss  is  virtually  an  Estate. 
12  a.  Eight  to  Water,  the  Subject  of  Grant  in  gross. 

13.  An  Easement  implies  neither  General  Property  nor  Seisin  of  Land. 

14.  Que  Estate  defined. 

1 


2  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

15.  Distinction  between  a  Right  to  the  Soil  and  to  take  Soil. 

16.  Classification  of  Servitudes  under  the  Civil  Law,  &c. 

17.  Of  Continuous  and  Discontinuous  Easements  at  Common  Law. 

18.  Of  Negative  Easements.     Pitkin  v.  L.  L  R.  R.  Co. 

19.  Of  a  Natural  Servitude  of  Water  and  its  Incidents. 

20.  How  far  a  Right  may  be  a  "  Natural  Easement." 

21.  A  Destination  du  P'ere  de  Famille  defined. 

22.  The  Servitude  non  officiendi  luminibus,  &c.,  applied. 

1.  From  the  various  modes  of  use  and  enjoyment  to 
which  lands  may  be  subjected,  there  results  an  idea  of 
property  in  these  distinct  from  tliat  of  actual  possession, 
with  which  the  feudal  doctrine  of  real  property  is  chiefly  as- 
sociated. Almost  every  shade  of  interest  or  right  of  control 
over  corporeal  hereditaments  may  exist,  from  the  absolute 
dominion  of  the  allodial  proprietor  to  the  briefest  and  most 
qualified  use  which  may  be  made  of  them,  by  mere  license 
and  indulgence,  which  necessarily  leads  to  a  classification 
of  rights,  in  treating  of  Real  Property  as  a  general  system. 

It  is  of  one  only  of  these  classes  that  this  work  proposes 
to  treat,  and,  although  somewhat  comprehensive  in  its  char- 
acter, it  is  embraced  under  the  generic  term  of  Easements 
or  Servitudes. 

2.  Various  forms  of  definition  have  been  applied  in  de- 
scribing this  class  of  interests  in  real  property,  which  are 
more  or  less  comprehensive,  as  the  court  or  writer  was  con- 
templating the  subject  as  an  entire  system,  or  in  its  more 
limited  and  restricted  sense. 

Thus  the  definition  adopted  by  Bayley,  J.,  from  "  Termes 
de  la  Ley,"  which  he  calls  "  a  book  of  great  antiquity  and 
accuracy,"  is  "  a  privilege  that  one  neighbor  hath  of  an- 
other by  charter  or  prescription,  without  profit";  and  it  is 
illustrated  "  as  a  way  or  sink  through  his  land,  or  such 
like."  1  And,  in  another  case,  the  court,  in  giving  illus- 
trations of  what  are  easements,  speak  of  "  rights  of  way, 
rights  to  water,  right  to  pollute  water,  and  rights  of  com- 
mon," as  being  "  well  defined  as  easements,  to  be  exercised 

1  llewlins  v.  Shiitpam,  5  Barnew.  &  C.  221  ;  Cowel,  Interp.  "Easement." 


Sect.  1.]      NATURE,    CLASSIFICATION,   ETC.   OF   EASEMENTS.  3 

by  one  person  over  the  land  of  another,"  and  add :  "  The 
right  acquired  by  time  to  send  noxious  vapors  over  an- 
other's land  is  another  instance."  ^ 

The  essential  qualities  of  easements  are  these  :  1st,  they 
are  incorporeal ;  2d,  they  are  imposed  on  corporeal  property, 
and  not  upon  the  owner  thereof;  3d,  they  confer  no  right 
to  a  participation  in  the  profits  arising  from  such  property  ; 
4th,  they  are  imposed  for  the  benefit  of  corporeal  property  ; 
and  5th,  there  must  be  two  distinct  tenements,  —  the  domi- 
nant, to  which  the  right  belongs,  and  the  servient,  upon 
which  the  obligation  rests.^  But  it  is  not  necessary  that 
the  dominant  and  servient  estates  should  be  in  contiguity 
with  each  other.^  A  contract  for  a  right  to  pass  over  the 
lands  of  another  is  an  easement  extending  only  to  a  tem- 
porary disturbance  of  the  owner's  possession.  Tlie  grantee 
of  such  an  easement  is  not  the  owner  or  occupant  of  the 
estate  over  which  the  way  is  used.* 

3.  These  definitions,  it  will  be  perceived,  exclude  the 
right  of  taking  profits  in  another's  land,  commonly  called 
profits  a  prendre^  although  the  court,  in  Kowbotham  v.  Wil- 
son, embrace  rights  of  common  as  expressly  within  the  term 
easement,  and  although,  as  will  appear  hereafter,  such  rights 
were  included  in  those  of  servitude  under  the  civil  law,  with 
which  easements  are  understood  to  be  in  most,  if  not  all  re- 
spects, identical. 

Mr.  Burton  speaks  of  them  thus  :  "  Rights  of  accommoda- 
tion in  another's  land,  as  distinguished  from  those  which 
are  directly  profitable,  are  properly  called  easements."^ 

1  Rowbotham  v.  Wilson,  8  Ellis  &  B.  123.  "  All  easements  are  things  incor- 
poreal, mere  rights  invisible  and  intangible."  Bowen  v.  Team,  6  Rich.  298.  A 
servitude  is  thus  defined  by  the  Code  Nap.,  §  637 :  "  Une  charge  impose'e 
Rur  heritage  pour  I'usage  et  I'utilite  d'un  heritage  appartenant  a  un  autre  proprie- 
taire."  The  civil  law  recognized  a  servitude  which  was  due  from  one  person  to 
another,  which  was  not  recognized  by  the  laws  of  France  or  England.  Inst.  L. 
Ijtit.  3,  §2.     1  Lepage  Desgodcts,  4.    Giitter.  Brae.  98. 

2  Wolfe  V.  Frost,  4  Sandf.  Ch.  72 ;  Tud.  Lead.  Cas.  107. 
8  Perrin  v.  Garfield,  37  Vt.  312. 

*  Cook  Co.  V.  C.  B.  &  Q.  R.  R.,  35  111.  464. 
6  Burt.  Real.  Prop.,  k  1165. 


4  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cir.  I. 

Nor  does  the  last  definition  embrace  the  class  of  rights 
■which  one  may  have  in  another's  land,  like  a  right  of  way 
or  of  common,  without  its  being  exercised  in  connection 
with  the  occupancy  of  other  lands,  and  therefore  called  a 
right  in  gross.  Mr.  Burton  says,  "  Such  a  right  (of  way), 
if  in  gross,  seems  to  be  not  properly  a  tenement."^  Servi- 
tus  presupposes  a  relation  existing  between  two  pieces  of 
land.  Rights  granted  to  the  person  only,  were  not  held  to 
be  servitudes?  But,  after  all,  it  partakes  so  mucli  of  the 
character  of  an  easement,  that,  like  the  rights  which  the  in- 
habitants in  certain  localities  may  acquire  by  custom^  or  the 

public  by  dedication,  to  pass  over  the  land  of  an  indi- 
[*4]  vidual,  for  instance,  it  *would  be  difficult  to  treat  of 

easements  and  servitudes,  without  embracing  these 
rights,  as  well  as  that  of  taking  profits  in  another's  land 
which  one  may  enjoy  in  connection  with  the  occupancy  of  the 
estate  to  which  such  right  is  united.  An  illustration  of  what 
constitutes  an  easement,  as  distinguished  from  a  profit  a 
prendre,  would  be  this.  All  rights  of  way  are  easements. 
So  is  the  right  to  enter  upon  another's  land,  and  to  erect 
booths  thereon  on  public  days,  or  to  dance  and  play  at  law- 
ful sports.  So  are  aquatic  rights  of  whatever  kind  when  en- 
joyed by  those  who  do  not  own  the  soil,  such  as  a  right  to 
take  water  from  a  spring  or  a  well  upon  another's  land  for 
domestic  use.  But  a  right  to  take  and  carry  away  sea-weed 
is  a  profit  a  prendre,  and  not  a  technical  easement.  Nor  can 
it  be  prescribed  for  as  a  personal  right,  or  a  right  by  custom.^ 
Indeed,  the  latter  branch  of  the  subject  is  expressly  in- 
cluded in  the  definition  given  by  the  court  in  Ritger  v. 
Parker,  viz. :  "  An  easement  or  servitude  is  a  right  which 
one  proprietor  has  to  some  profit,  benefit,  or  lawful  use,  out 
of,  or  over,  the  estate  of  another  proprietor."  ^ 

1  Burt.  Roal.  Prop.,  S  1166. 

2  Gutter.  Bnic,  c.  1.5,  p.  122. 

3  Hill  V.  Lord,  48  Maine,  99.     Pout,  *78,  *79. 

*  llitgcr  r.  ]*arker,  8  Cush.  14.5.    In  trcatinj;  of  the  .subject  in  this  broader  sense 
of  the  term,  it  ia  believed  we  arc  fully  sustained  by  the  following,  among  other 


Sect.  1.]      NATUKE,   CLASSIFICATION,   ETC.   OF   EASEMENTS.  5 

4.  The  term  which  is  applied  to  interests  in  land,  such 
as  have  been  above  referred  to,  by  the  civil  law,  is  "  Servi- 
tudes." Nor  can  the  doctrines  of  the  common  law  upon  the 
subject  be  fully  understood  or  explained,  without  occasion- 
ally referring  to  those  systems  from  which  the  common  law 
has  borrowed  many  of  its  rules,  A  "  servitude  "  is  defined 
to  be  "  a  right,  whereby  one  thing  is  subject  to  another  thing 
or  person,  for  use  or  convenience  contrary  to  common  right." 
"  Services,"  it  is  further  said,  "  may  be  divided  into  real  and 
personal.  Real,  which  are  also  called  *■  prcedial  services,'  are 
such  as  one  estate  owes  unto  another  estate,  as,  because  I  am 
the  owner  of  such  a  ground,  I  have  the  right  of  a  way 
through  the  ground  of  another  person,  or,  because  I  am  pos- 
sessed of  this  house,  my  neighbor  cannot  beat  out  a  light  or 
window  out  of  his  own  house  towards  mine,  or  build  his 
house  higher  without  my  leave."  ^ 

It  is  the  nature  of  servitudes  not  to  constrain  any  one  to 
do,  but  to  suffer  something,  "  ut  aliquid  patiatur  aut  non 
faciat."^ 

*"  Hence,"  says  Mr.  Erskine,  "  it  may  be  perceived  [*5] 
that  he  whose  tenement  may  be  subject  to  a  servitude 
is  not,  in  the  common  case,  bound  to  perform  any  act  for  the 
benefit  of  the  person  or  tenement  to  which  it  is  due.  His 
whole  burden  consists  either  in  being  restrained  from  doing, 
or  in  being  obliged  to  suffer  something  to  be  done  upon  his 
property  by  another.  In  the  first  case,  in  which  the  pro- 
prietor is  barely  restrained  from  acting,  the  servitude  is  called 
neg-ative,  in  the  lo^st  positive .^^  ^ 

Both  terms.  Easements  and  Servitudes,  are  used  by  com- 
mon-law writers,  and  often  indiscriminately.     The  former, 

authorities  :  Brakely  v.  Sharp,  I  Stockt.  9  ;  Doe  v.  Wood,  2  Barnew.  &  Aid.  724  ; 
Kieffer  v.  Imhoff,  26  Tenn.  St.  438  ;  Shelf.  R.  P.  Stat.  6;  1  Lomax,  Dig.  614  ; 
Tud.  Lead.  Cas.  107  ;  KarmuUer  v.  Kratz,  18  Iowa,  357. 

1  Ayl.  Tand.  306  ;  Ersk.  Inst.  3.54. 

2  2  Fournel,  Traite  dii  Voisin.ige,  361  ;  D.  8,  1,  15  ;  5  Duranton,  Cours  de 
Droit  Fran9ais,  498,  ed.  1834;  Lalaure,  Traite'  des  Servitudes,  9. 

8  Ersk.  Inst.  352. 


6  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

however,  is  more  generally  applied  to  the  right  enjoyed,  the 
latter  to  the  burden  imposed.  The  right  of  way  which  one 
man  has,  as  the  owner  of  an  estate,  over  the  land  of  another, 
is  an  easement  in  the  one  estate  and  a  servitude  upon  the 
other. 

As  both  terms  may,  at  times,  be  employed  in  this  work, 
this  explanation  seemed  to  be  necessary  in  order  to  prevent 
confusion  in  the  forms  of  expression  that  may  be  made  use  of. 

5.  There  is  an  important  distinction  to  be  observed  be- 
tween an  Easement  and  a  License,  lest  the  apparent  similar- 
ity in  their  mode  of  enjoyment  should  mislead  the  inquirer, 
at  times,  as  to  their  character.  An  Easement  always  im- 
plies an  interest  in  the  land,  in  or  over  which  it  is  to  be  en- 
joyed. A  License  carries  no  such  interest.  The  interest  of 
an  easement  may  be  a  freehold  or  a  chattel  one,  according  to 
its  duration ;  whereas,  whatever  right  one  has  in  another's 
land  by  license  may,  as  a  general  proposition,  be  said  to  be 
revocable  at  will  by  the  owner  of  the  land  in  which  it  is  to 
be  enjoyed.! 

Thus  it  is  said,  "  An  easement  must  be  an  interest  in  or 

over  the  soil."^     "  It  lies  not  in  livery,  but  in  grant, 

[*6]  and   a  *freehold  interest   in   it  cannot   be  created  or 

passed,  (even  if  a  chattel  interest  may,  which  I  think 

it  cannot,)  otherwise  than  by  deed."  ^ 

And  where  a  right  of  way  was  set  off  to  a  widow  as  appur- 
tenant to  her  dower  land,  it  was  held  to  continue  only  dur- 
ing the  continuance  of  her  life  estate."^ 

The  foregoing  distinction  between  a  license  and  an  ease- 
ment may  be  illustrated  by  the  effect  given  to  a  conveyance 
of  the  land  in  or  over  which  it  is  to  be  enjoyed.  A  convey- 
ance of  land  by  the  grantor,  who  has  given  a  parol  license  to 

1  Ex  parte  Coburn,  1  Cow.  568  ;  Wolfe  v.  Frost,  4  Sandf.  Ch.  72 ;  Foster  v. 
Browninp:,  4  R.  I.  47  ;  post,  p.  *7. 

2  Per  Cressivdl,  J.,  llowbotluim  v.  Wilson,  8  Ellis  &  B.  123. 
2  Hewlins  v.  Shippam,  5  Baniew.  &  C  221,  per  Boyleij,  J. 

*  IIofTman  v.  Savage,  15  Mass.  131.  See  Symmcs  v.  Drew,  21  Pick.  278; 
Grant  v.  Cliaso,  17  Mass.  446. 


Skct.  1.]      NATURE,   CLASSIFICATION,   ETC.   OF   EASEMENTS.  7 

another  to  enjoy  a  right  in  the  nature  of  an  easement  in  it, 
ipso  facto^  determines  the  license  ;  whereas  whoever  takes 
an  estate  upon  which  a  servitude  has  been  imposed,  holds  it 
subject  to  the  same  servitude,  and  in  the  same  manner  as  it 
was  held  by  his  grantor. ^ 

6.  It  may  be  further  remarked,  by  way  of  preliminary 
explanation,  that,  while  in  acquiring  an  easement  by  grant 
or  prescription,  which  is  deemed  to  be  evidence  of  a  grant,  a 
grantor  and  a  grantee  are  always  implied,  there  is  a  class  of 
easements  which  the  residents  of  vills  or  particular  localities 
may  acquire  by  what  is  called  custom,  altliough  not  claimed 
by  them  as  personal  rights,  nor  as  rights  belonging  to  a  body 
politic,  nor  by  any  right  or  claim  as  grantees.^ 

And  in  further  explanation  of  the  distinction  there  is  be- 
tween an  easement  or  servitude,  properly  so  called,  and  a 
right  by  custom,  it  may  be  stated,  that  among  the  rights 
which  have  been  held  to  be  gained  by  custom,  are  those  of 
the  people  of  a  particular  vill  coming  together  to  dance  upon 
a  particular  close,  or  drawing  water  for  their  use  from 
*a  certain  well  or  spring  of  water.  But  these  rights  do  [*7] 
not  extend  to  the  taking  of  profits  in  the  land  of  another, 
such  as  catching  fish  in  his  waters,  or  taking  sand  from  his 
soil  or  herbage  from  his  close.  This  can  only  be  acquired  by 
grant  or  prescription,  and  implies  a  person  or  body  politic  in 
esse,  competent  to  take  by  deed.^  If  the  grant  be  a  personal 
license  of  pleasure,  it  extends  only  to  the  individual,  and  is 
not  to  be  exercised  by  or  with  servants  ;  but  if  it  be  a  license 
of  profit  and  not  for  pleasure,  it  may.  The  case  referred  to 
was  of  a  license  to  hunt,  and  as  it  included  the  right  to  kill 

1  Wallis  V.  Harrison,  4  Mees.  &  W.  538  ;  Hills  v.  Miller,  3  Paige,  254,  257. 

2  Brakely  v.  Sharp,  1  Stockt.  9  ;  Lockwood  v.  Wood,  6  Q.  B.  31,  66;  Day 
V.  Savadge,  Hob.  85  ;  Gateward's  case,  6  Rep.  60  ;  1  Lomax,  Dig.  614  ;  Smith 
V.  Gatewood,  Cro.  Jac.  152. 

3  Bland  v.  Lipsconihe,  4  Ellis  &  B.  714,  note;  Grimstead  v.  Marlowe,  4  T.  R. 
717;  Abbot  v.  Weekly,  1  Lev.  176;  Waters  v.  Lilley,  4  Pick.  145;  Race  v. 
Ward,  7  Ellis  &  B.  3S4  ;  Wickham  v.  Hawker,  7  Mees.  &  W.  63.  See  post,  sect. 
4,  pi.  12,  13,  18  ;  chap.  3,  sect.  10. 


8  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Ch.  I. 

and  take  with  him  the  deer  at  his  pleasure,  it  was  held  a 
license  to  go  on  with  his  servants,  or  send  them  to  hunt ; 
whereas,  if  it  was  a  mere  license  to  hunt  at  his  pleasure, 
he  cannot  take  away  the  game,  nor  go  with  servants,  nor 
assign  his  license  to  another. ^ 

7.  This  right  of  profit  a  p7'endre,  if  enjoyed  by  reason  of 
holding  a  certain  other  estate,  is  regarded  in  the  light  of  an 
easement  appurtenant  to  such  estate ;  whereas,  if  it  belongs 
to  an  individual,  distinct  from  any  ownership  of  other  lands, 
it  takes  the  character  of  an  interest  or  estate  in  the  land  it- 
self, rather  than  that  of  a  proper  easement  in  or  out  of  the 
same.^  Where,  in  the  grant  of  one  parcel  of  land,  it  was 
agreed  that  the  grantee  should  "  have  the  use  of  the  timber  " 
on  another  parcel,  belonging  to  the  grantor,  it  was  held 
that  the  right  granted  was  one  "  in  alieno  solo,  like  common 
of  turbary,  or  the  right  to  take  coal  or  ore  in  another's  land, 
and  was  when  assignable  not  properly  an  easement  but  a 
profit  a  prendre  which  may  be  acquired  by  grant  or  prescrip- 
tion, and  a  covenant  by  the  owner  of  the  soil  that  it  shall 
exist,  amounts  to  a  grant  of  it."  And  if  not  assignable,  but 
a  mere  personal  privilege,  the  covenant  gives  an  irrevocable 
license  for  its  exercise.  But  the  court,  though  they  hold  it 
an  incorporeal  right,  do  not  decide  whether,  in  this  case,  the 
right  to  use  the  timber  was  a  personal  one  in  gross,  or  a  right 
appurtenant  to  the  granted  estate.^ 

8.  It  will  be  necessary  to  refer  to  these  distinctions  again. 
And  they  have  been  noticed  at  this  stage  of  the  work  chiefly 
for  the  purpose  of  defining  the  meaning  of  certain  terms  and 
phrases  which  will  often  occur  in  the  progress  of  it.  And 
the  following  citations  are  added  for  the  same  purpose,  — 
the  first  as  showing  the  sense  in  which  the  term  easement  is 
used  in  its  connection  with  the  civil  law,  the  others  as  pre- 

1  Duchess  of  Norfolk  v.  Wiseman,  cited  7  M.  &  W.  77,  from  the  Y.  Books. 
Post,  p.  *28.     Sec  Mauwood,  108. 

2  Per  Walworth,  Ch.,  Post  v.  Pearsall,  22  Wend.  425;  Grimstcad  v.  Marlowe, 
4  T.  R.  717 ;  jiost,  sect.  4,  pi.  20. 

»  Clark  V.  Way,  11  Kich.  (Law),  G21  ;  post,  p.  *11. 


Sect.  1.]      NATURE,   CLASSIFICATION,   ETC.   OF  EASEMENTS.  9 

senting  what  is  believed  to  be  its  use,  at  this  day,  in  courts 
of  common  law. 

"  In  the  Civil  Law,  a  servitude  which  is  but  a  single  right 
of  property,  and  is  called  in  our  law  an  Easement,  is  a  bur- 
den affecting  lands,  by  which  the  proprietor  is  restrained 
from  the  full  use  of  his  property,  or  is  obliged  to  suffer  an- 
other to  do  certain  acts  upon  it,  which,  were  it  not  for  the 
burden,  would  be  competent  solely  to  the  owner."  ^  "  The 
right  of  making  use  of  the  land  of  others,  whether  it  be 
that  of  the  public  or  individuals,  for  a  precise  and 
definite  *purpose,  not  inconsistent  with  a  general  right  [*8] 
of  property  in  the  owner,  especially  where  it  is  for  the 
public  use,  is,  in  legal  contemplation,  an  easement  or  fran- 
chise, and  not  a  grant  of  the  soil  or  general  property."  ^  In 
the  words  of  Bramwell,  B.,  an  easement  is  "  something  ad- 
ditional to  the  ordinary  rights  of  property  "  ;  and  in  those 
of  Williams,  J.,  it  is  "  a  right  accessorial  to  the  ordinary 
rights  of  property."^ 

9.  The  ownership  of  an  easement,  and  that  of  the  fee  in 
the  same  estate,  are  in  different  persons.  Nor  does  the  in- 
terest of  the  one  affect  that  of  the  other,  so  but  that  each 
may  have  his  proper  remedy  for  an  injury  to  his  right,  inde- 
pendent of  the  other.  Thus  the  owner  of  the  fee  may  re- 
cover his  seisin  by  a  proper  action  in  his  own  name,  and  the 
owner  of  the  easement,  if  disturbed  in  the  enjoyment  of  it, 
may  sue  for  such  disturbance  in  his  own  name.* 

10.  It  is  hardly  necessary,  after  the  above  definitions,  to 
add,  that  the  existence  of  two  distinct  and  separate  estates 
or  tenements  is  implied  in  the  existence  of  an  easement ; 
the  one  in  favor  or  for  the  benefit  of  which  it  exists,  and 
is  called  dominant,  and  the  other,  over  or  upon  which  it 
is  exercised,  and  is  called  servient ;  and,  as  will  be  seen 

1  Laumier  v.  Francis,  23  Mo.  181. 

2  Boston  Water  Power  Co.  v.  Boston  &  Worcester  II.  R.,  16  Pick.  512,  522. 

3  Rowbotiiam  v.  Wilson,  8  Ellis  &  B.  123,  152.     See  also  Harhack  v.  City  of 
Boston,  10  Cush.  295;  Shelf.  R.  P.  Stat.  6.     Dubuque  v.  Maloney,  9  Iowa,  450. 

*  Hlhcock  V.  Wentworth,  5  Mete.  446  ;  Morgan  v.  Moore,  3  Gray,  319. 


10  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Ch.  I. 

hereafter,  if  at  any  time  these  estates  are  united  under 
one  ownership  and  possession,  the  easement  is  at  once  ex- 
tinguished.^ 

11.  A  man  may  have  a  way,  in  gross,  over  another's  land, 
but  it  must,  from  its  nature,  be  a  personal  right,  not  assign- 
able nor  inheritable  ;  nor  can  it  be  made  so  by  any  terms 
in  the  grant,  any  more  than  a  collateral  and  independent 
covenant  can  be  made  to  run  with  land. 

And  if  one  has  a  right  of  way  appendant  or  appurtenant 
to  an  estate,  he  cannot  grant  it  separate  and  distinct  from 

the  land  to  which  it  belongs. 
[*9]  *So  where  there  was  a  grant  of  a  right  of  way /or  all 
purposes,  though  it  might  authorize  the  grantee  to  use 
the  way  for  purposes  not  connected  with  the  use  of  the  land 
granted  therewith,  yet  if  land  was  in  fact  granted  therewith, 
so  far  as  the  use  exceeded  the  purposes  which  were  properly 
connected  with  the  enjoyment  of  the  land,  it  would  be  a 
personal  right,  and  not  assignable.  When,  therefore,  the 
grantee  conveyed  the  dominant  estate  "  with  all  ways,"  &c.,  it 
did  not  convey  any  right  of  way  as  being  appurtenant,  under 
that  grant,  except  such  as  was  connected  with  the  use  and 
enjoyment  of  the  land  to  which  it  was  annexed.  "  It  is 
not,"  say  the  court,  "  in  the  power  of  a  vendor  to  create  any 
rights,  not  connected  with  the  use  and  enjoyment  of  the  land, 
and  annex  them  to  it ;  nor  can  the  owner  of  land  render  it 
subject  to  a  new  species  of  burden,  so  as  to  bind  it  in  the 
hands  of  an  assignee.^ 

The  language  of  the  court  in  White  v.  Crawford,^  might 
seem  to  conflict  with  what  is  said  above  :  "  As  to  ways  in 
gross,  that  they  may  be  granted  or  may  accrue  in  various 
forms  to  one  and  his  heirs  and  assigns,  there  can  be  no  doubt. 
Tlicre  is  a  strong  example  of  such  a  grant  in  the  case  of 

1  Tud.  Lead.  Cas.  108.  Mabie  v.  Mattcson,  17  Wis.  1 ;  1  Desgodets,  ch.  2, 
art.  1. 

'^  Ackroyd  v.  Smith,  10  C.  B.  164,  1G7,  188;  Garrison  v.  lludd,  19  111.  558; 
Woolr.  Ways,  16  ;  post,  sect.  2,  pi.  16. 

8  White  V.  Crawford,  10  Mass.  188. 


Sect.  1.]      NATURE,   CLASSIFICATION,   ETC.   OF   EASEMENTS.  11 

Senhousc  v.  Christian,^  upon  which  the  defendants  justified 
as  heirs  of  the  original  grantee." 

12.  But  the  language  of  Walworth,  Ch.,  in  Post  v.  Pear- 
sall,2  would  seem  to  furnish  a  clew  hy  which  these  cases  may 
be  reconciled  with  the  above  doctrine  of  Ackroyd  v.  Smith. 
The  distinction  seems  to  be  this :  If  the  easement  consists 
in  a  right  of  projit  a  prendre,  such  as  taking  soil,  gravel, 
minerals,  and  the  like,  from  another's  land,  it  is  so  far  of  the 
character  of  an  estate  or  interest  in  the  land  itself, 
*that,  if  granted  to  one  in  gross,  it  is  treated  as  an  [^lO] 
estate,  and  may,  therefore,  be  one  for  life  or  inheri- 
tance. But  if  it  is  an  easement  proper,  such  as  a  right  of 
way  and  the  like,  and  is  granted  in  gross,  it  is  a  mere  per- 
sonal interest,  and  not  inheritable.  The  case  of  Senhouse 
V.  Christian  was  one  where  there  was  a  grant  of  a  way,  and 
the  question  was,  chiefly,  as  to  the  mode  and  extent  of  using 
it,  and  the  point  of  its  being  inheritable  does  not  seem  to 
have  arisen  in  the  hearing.  But  the  very  terms  of  the  grant 
implied  an  occupancy  of  the  grantor's  land  to  a  certain  ex- 
tent, as,  for  instance,  to  "make  and  lay  causeways,"  &c.,  and 
it  was  held  to  be  the  grant  of  a  right  to  lay  a  framed  wagon- 
way  across  the  grantor's  land. 

12  a.  In  a  very  recent  case  in  Massachusetts,^  Foster,  J. 
examines  the  question  of  a  grant  of  a  right  to  draw  water 
from  a  spring  by  means  of  an  aqueduct,  and  how  far  it  was 
itself  a  subject  of  grant  independent  of  the  ownership  of  any 
estate  to  which  it  was  appurtenant,  in  a  full  and  elaborate 
opinion,  in  which  it  is  clearly  shown  that  such  a  right  is  the 
subject  of  grant  and  inheritance,  although  not  accompanied 
by  the  grant  of  an  estate  in  land.  The  right  was  created  by 
a  reBervation  by  the  original  owner  of  the  estate  upon  which 
the  spring  was  situated  when  granting  the  same,  the  reser- 

1  Senhouse  v.  Christian,  1  T.  R.  560. 

^  Post  V.  rearsall,  22  Wend.  425  ;  Perley  v.  Langley,  7  N.  H.  233  ;  post,  sect. 
4,  pi.  20.  See  also  2  Blackst.  Comm.  33,  the  case  of  Common  ;  Welcome  v. 
Upton,  6  Mees.  &  W.  536,  case  of  Pasturage. 

2  Goodrich  v.  Burbank,  Allen,  not  yet  reported. 


12  THE  LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cn.  I. 

vation  being  to  the  grantor,  his  heirs  and  assigns,  without 
any  reference  to  any  estate  with  which  it  was  to  be  used  ;  and 
the  injury  complained  of  was  cutting  the  aqueduct  by  the 
owner  of  the  soil.  He  cites,  with  approbation,  the  language 
of  Curtis,  J :  1  "  If  I  have  a  spring,  I  may  sell  the  right  to 
take  water  from  it  by  pipes  to  one  who  does  not  own  the  land 
across  which  the  pipes  are  to  be  carried,  and  I  may  restrict 
the  use  to  a  particular  house,  or  not,  as  I  please."  "  Incor- 
poreal hereditaments  may  be  inseparably  annexed  to  a  par- 
ticular messuage  or  tract  of  land  by  the  grant  which  creates 
them  and  makes  them  incapable  of  separate  existence.  But 
they  may  also  be  granted  in  gross,  and,  afterwards,  for  pur- 
poses of  enjoyment,  be  annexed  to  a  messuage  or  land  with- 
out the  right,  or  a  conveyance  of  the  right  without  the  land." 
Although,  in  the  cases  above  cited  from  both  the  New 
York  and  Massachusetts  courts,  there  is  a  distinction  made 
between  the  grant  of  water  and  of  a  profit  a  prendre^  where 
water  is,  as  it  may  be,  a  subject  of  sale  in  gross  as  a  thing  of 
value,  it  does  not  seem  to  be  violating  any  principle  of  law 
to  regard  it  as  a  species  oi profit  a  prendre,  and  therefore  a 
subject  of  separate  grant.  Thus  in  Chatfield  v.  Wilson,  the 
court,  speaking  of  water  in  the  earth  or  percolating  under 
its  surface,  say  :  "  Such  water  is  to  be  regarded  as  part  of 
the  land  itself,  to  be  enjoyed  absolutely  by  the  proprietor 
within  whose  territory  it  is."  ^  And  in  giving  judgment  in 
Acton  V.  Blundell,  Tindal,  C.  J.  remarks  :  "  It  (the  case) 
falls  within  that  principle  which  gives  to  the  owner  of  the 
soil  all  that  lies  beneath  his  surface  ;  the  land  immediately 
below  is  his  property,  whether  it  is  solid  rock  or  porous 
ground  or  venous  earth,  or  part  soil,  part  water.  The  per- 
son who  owns  the  surface  may  dig  therein  and  apply  all  that 
is  there  found  to  his  own  purposes,  at  his  free  will  and 
pleasure."  ^ 

1  Lonsdale  Co.  v.  Moics,  21  Law  Rep.  664  ;  see  Dc  Witt  v.  Harvey,  4  Gray, 
489  ;  Buffum  v.  Harris,  5  U.  I.  243  ;  Borst  v.  Empie,  1  Seltl.  40. 

2  Chatfield  v.  Wilson,  28  Verm.  49. 

8  Acton  V.  Blundell,  12  M.  &  Wcls.  354.     See  Buffum  v.  Harri.s,  5  K.  L  253. 


Sect.  1.]      NATURE,   CLASSIFICATION,   ETC.   OF  EASEMENTS.  13 

And  though  it  might  be  difficult  to  raise  a  prescriptive 
right  of  inheritance  in  the  privilege  of  an  aqueduct  by  a  per- 
sonal enjoyment,  independent  of  its  user  in  connection  with 
some  estate,  and  although  a  right  to  the  enjoyment  of  water 
from  a  well  or  spring  or  river  may  be  gained  by  custom,  since 
no  part  of  the  soil  or  freehold,  proper,  is  thus  carried  away 
any  faster  than  it  is  ordinarily  supplied  from  natural  sour- 
ces, yet,  after  all,  it  is  an  interest  in  land  ;  and  as  the  judge 
in  Goodrich  v.  Burbank  very  properly  and  forcibly  remarks, 
"  we  are  unable  to  distinguish  between  the  right  to  take  wa- 
ter by  a  canal  from  a  pond  for  the  purposes  of  power  and  the 
right  to  take  it  from  a  spring  in  a  pipe  for  domestic  pur- 
poses." ^ 

If  the  grant  of  a  right  to  take  water  in  or  from  the  grant- 
or's estate  can  be  regarded  as  "  taking  a  profit  in  the  soil," 
the  cases  seem  clear  that  it  may  be  to  one  and  his  heirs,  in- 
dependent of  the  ownership  of  any  estate  to  which  the  right 
is  to  be  appurtenant.  Thus  a  right  "  to  search  and  get  " 
minerals,^  or  to  hunt  in  a  man's  park  and  carry  away  the 
deer,^  are  subjects  of  grant,  and  may  pass  to  assigns. 

And  the  court  in  Hill  v.  Lord  say,  "  that  the  right  to  wa- 
ter in  wells  or  cisterns  would  be  an  interest  in  the  land  or  a 
profit  a  prendre^  ^  And  though,  if  the  action  were  against 
a  stranger  for  taking  water  from  a  spring  of  running  water, 
the  distinction  might  be  a  valid  one  between  water  in  a  stream 
and  water  in  a  well  or  cistern,  it  would  not  seem  to  lie  in 
the  mouth  of  the  grantor  to  justify  cutting  off  the  supply 
wliich  is  enjoyed  by  means  of  a  pipe  laid  through  his  land 
from  a  spring  that  rises  within  the  same,  the  right  to  take 
and  enjoy  which,  by  maintaining  such  pipe,  he  or  those  under 
whom  he  claims  title  had  conveyed  by  deed. 

13.   The  owner  of  an  easement  in  another's  land  has  nei- 

1  See  post,  *T9,  *80.     Hurd  v.  Curtis,  7  Met.  114. 

2  Muskett  V.  Hill,  5  Bing.  N.  C.  694. 

3  Thomas  v.  Lovell,  Vaughn,  351  ;  Bailey  v.  Stephens,  12  C.  B.,  n.  s.  108. 
*  Hill  V.  Lord,  48  Maine,  100. 


14  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Ch.  I. 

tlier  the  general  property  in  nor  seisin  of  the  servient  estate, 
though  he  may,  by  holding  a  fee  in  the  estate  to  which  such 
easement  is  appurtenant,  have  an  estate  of  inheritance  in  the 
easement.  And  from  being  something  impalpable,  of  which 
a  seisin  cannot  be  predicated,  easements  are  classed  with  in- 
corporeal hereditaments,  and  are  so  designated  in  the  defini- 
tions thereof.^ 

14.  If  one  claims  a  prescriptive  right  to  an  easement  in 
another's  land,  by  reason  of  owning  or  occupying  land  to 
which  such  right  is  appurtenant,  he  is  said  to  claim  in  a  que 
estate,  and  it  is  only  in  this  form  that  a  claim  of  a  profit  a 
prendre,  by  prescription,  can  be  sustained.^ 

15.  The  case  of  Doe  v.  Wood  illustrates  the  distinction 
between  the  grant  of  a  specific  portion  or  share  of  soil,  and 
that  of  a  right  or  privilege  to  acquire  something  by  acts  done 
upon  the  soil  of  another.     In  that  case,  the  grant  was  of  a 

right  to  search  for  metals  in  the  grantor's  land,  and  to 
[*11]  raise  and  dispose  of  the  same  when  found  there,  *dur- 

ing  the  time.  It  was  held  to  be,  not  a  specific  granf  of 
the  metals  in  the  land,  but  a  right  of  property  only  as  to 
such  part  thereof  as,  under  the  liberties  granted,  should  be 
dug  and  got ;  that  the  grantee  had  no  estate  as  property  in  the 
land  itself,  or  any  particular  portion  thereof,  or  in  any  part  of 
the  ore  ungot  therein,  and  that  it  was  very  different  from  a 
grant  or  demise  of  the  mines  or  metals  in  the  land.  The 
right  to  obtain  the  minerals  is  spoken  of  as  an  "  incorporeal 
privilege."  ^  If,  however,  the  grant  be  of  a  mine  with  min- 
ing privileges,  it  is  not  an  easement,  but  a  part  of  the  free- 
hold.4 

16.  In  classifying  servitudes,  the  civil  law  recognized  a 
much  more  minute  subdivision  of  the  various  forms  they  as- 

1  "Winslow  V.  King,  14  Gray,  321  ;  Ayl.  Pand.  306  ;  Baer  v.  Martin,  8  Blackf. 
317;  Pitliin  v.  Long  Island  11.  R.  Co.,  2  Barb.  Ch.  221  ;  Orleans  Navigation  Co. 
V.  Mayor  of  New  Orleans,  2  Mart.  214. 

2  Grimstead  r.  Marlowe,  4  T.  11.  717 ;  Abbot  v.  Weekly,  1  Lev.  176. 
8  Doc  V.  Wood,  2  Barnew.  &  Aid.  724. 

*  Caldwell  V.  Pulton,  31  Penn.  475  ;  Zinc  Co.  v.  Franklinitc,  13  N.  J.  341  ; 
Grubb  V.  Bayard,  2  Wallace,  Jr.  81  ;  ante,  p.  *7. 


Sect.  1.]      NATUEE,   CLASSIFICATION,   ETC.    OF   EASEMENTS.  15 

sumed,  than  those  in  use  in  the  common  law,  although,  as 
already  remarked,  the  latter  has  bori-owcd  so  liberally  from 
the  former.  And  though,  in  treating  of  the  subject,  the 
more  general  classification  of  the  common  law  will  be  ob- 
served, it  seems  proper  to  mention  some,  at  least,  of  the  di- 
visions, and  their  designation,  which  were  known  to  the  civil 
law  in  its  practical  application.  For  though  it  is  said  by 
Martin  B.,  that  the  civil  law  has  no  binding  authority  in  the 
administration  of  the  common  law  in  England,  the  cases  are 
numerous  in  the  American  courts,  where  the  doctrines  of  the 
civil  law  are  referred  to,  in  determining  the  rights  of  parties 
in  respect  to  easements  and  servitudes.^ 

That  class  of  servitudes  which  are  chiefly  treated  of  in  this 
work  were  called  Predial,  from  Prtsdia,  lands  and  tenements, 
being  such  services  as  one  estate  owes  to  another.  These 
were  again  divided  into  rwra/  and  urban,  the  one  relating  to 
land  not  occupied  by  buildings,  the  other  affecting  buildings, 
whether  in  a  city  proper,  a  vill,  or  in  the  country.^ 

Among  the  rural  services  was  the  right  of  passing  over 
the  land  of  another,  which  took  various  names  of  Iter,  Actus, 
and  Via  or  Aditus,  according  to  the  extent  and  mode  of 
using  the  same  ;  the  right  of  bringing  water  through  anoth- 
er's land,  called  Aqucc  ductus,  when  done  by  pipe  or  rivulet ; 
the  right  of  drawing  water,  of  watering  cattle,  of  pasturage, 
hunting,  hawking,  fishing,  making  lime  and  digging  gravel, 
chalk,  stone,  or  sand,  for  the  use  of  the  dominant  estate, 
though  not  for  other  uses,  such  as  the  manufacture  of  earth- 
enware. All  these  were  what  were  called  affirmative  ser- 
vices. 

*The  urban  services  were  either  affirmative  or  nega-   [*12] 
tive.     Among  the  affirmative  urban  services  were  the 
right  to  rest  the  wall  of  a  house  for  its  support  against  that  of 
another,  and  to  require  the  owner  of  the  latter  to  keep  the 
same  in  repair ;  the  right  to  fix  and  rest  a  beam  or  timber  or 

1  Dodd  V.  Burchell,  1  H.  &  Colt.  121. 

2  Guterb.  Brae,  c.  15 ;  1  Desgodets,  ch.  1,  art.  2. 


16  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

stone  in  the  wall  of  another's  house,  in  which  case  the  latter 
was  not  bound  to  keep  his  wall  in  repair ;  the  right  to  extend 
a  balcony  over  the  land  of  another,  or  to  excavate  a  vault  be- 
neath it ;  the  right  to  extend  the  eaves  of  one's  house  over 
the  land  of  another,  to  turn  the  droppings  of  his  eaves  upon 
the  house  or  ground  of  another,  or  to  receive  the  droppings 
from  another's  eaves  upon  one's  own  land,  for  his  own  use 
and  benefit ;  a  right  to  have  a  sink  or  gutter  through  a 
neighbor's  house,  to  construct  what  lights  or  windows  he 
chooses  against  the  estate  of  another,  and  to  have  a  clear  and 
pleasant  prospect  from  one's  house  over  another's  court  or 
yard,  or  to  have  a  passage-way  through  another's  house  or 
yard  to  one's  own. 

Among  the  negative  services  of  an  urban  character  were, 
that  one's  neighbor  should  not  turn  the  droppings  of  the 
eaves  of  his  house  upon  the  house  or  ground  of  him  who 
has  the  servitude  ;  that  he  should  not  darken  his  windows, 
or  hinder  his  prospect  by  building,  or  by  planting  trees  ;  that 
lie  should  not  make  windows  overlooking  his  premises ;  and 
a  right  to  restrain  another  from  building  his  house  above  a 
prescribed  height.^ 

The  637th  to  the  701st  articles  of  the  Code  Napoleon  de- 
scribe and  enumerate  the  servitudes  known  to  the  French 
law,  and  include,  —  1st,  such  as  arise  from  the  situation  of 
places,  as  the  respective  rights  of  the  owners  of  adjacent 
lands  in  respect  to  the  waters  upon  the  one  passing  upon  or 
across  the  other,  the  boundaries  of  adjacent  lands, 
[*13]  and  *the  like ;  2d,  such  as  are  created  by  law,  among 
which  are  towing-paths  upon  banks  of  rivers  and 
highways,  and  party  walls  and  ditches  between  two  estates, 
and  party  or  division  hedges  dividing  lands,  servitudes  of 
views  over  a  neighbor's  property,  and  those  of  eaves  of  roofs 
and  of  ways  answering  to  ways  of  necessity  at  common  law ; 

1  Ayl.  Pand.  306-310;  "Wood,  Inst.  Civ.  Law,  147;  1  Brown,  Civ.  Law, 
182,  183 ;  1  Kauff.  Mackddey,  33.5  -  347  ;  2  Fournal,  Traite  du  Voisinage,  400  ; 
D.  8,  2,  2  and  3  ;  Ibid.  8,  3,  1.     See  Shelf.  R.  P.  Stat.  6  ;  post,  chap.  3,  sect.  12. 


Sect.  1.]      NATURE,   CLASSIFICATION,   ETC.    OF   EASEMENTS.  17 

3d,  servitudes  created  by  the  act  of  man,  which  are  divided 
into  urban  and  rural,  answering  to  a  like  division  in  the  civil 
law,  servitudes  continual  and  continuable,  and  servitudes  ap- 
parent and  non-apparent.  Another  division  of  the  subject  is, 
1st,  how  servitudes  are  created,  and  2d,  what  are  the  rights 
of  the  owner  of  the  property  to  which  the  servitude  is  due.^ 

The  Civil  Code  of  Louisiana  follows  substantially  the  Code 
Napoleon,  in  relation  to  servitudes  predial  or  landed,  though 
somewhat  more  minute  in  their  subdivision,  and  the  rules  by 
which  they  are  created  or  regulated,  extending  from  Articles 
642  to  818  inclusive,  beginning  at  p.  96  of  Upton  and  Jen- 
nings's edition  of  that  work. 

But  it  has  not  been  ihought  advisable  to  occupy  space  in 
transcribing  any  of  these  codes,  any  further  than  it  may  be 
found  of  use  by  way  of  illustrating  corresponding  parts  of  the 
common  law  upon  the  subject. 

The  same  may  be  said  of  the  Scotch  law  of  servitudes, 
which  substantially  follows  the  civil  law,  and  may  be  found 
embodied  in  Erskine's  Institutes.^ 

17.  Many  of  the  classifications  of  easements  in  the  Code 
of  France  ara  recognized  by  the  courts  of  common  law,  as, 
for  instance,  that  of  continuous  and  discontinuous,  which  are 
thus  defined :  "  Continuous  are  those  of  which  the  enjoy- 
ment is  or  may  be  continual,  without  the  necessity  of  any 
actual  interference  by  man,  as  a  waterspout  or  a  right  of  light 
light  or  air.  Discontinuous  are  those  the  enjoyment 
*of  which  can  be  had  only  by  the  interference  of  man,  [*14j 
as  rights  of  way,  or  a  right  to  draw  water."  ^ 

1  2  Code  Nap.,  Barrett's  transl.,  Art.  6.37-689.  See  2  Fournel,  Traite'  du  Voi- 
sinage,  400-407.  The  doctrines  of  the  civil  code,  relating  to  the  easements  and 
servitudes  of  buildings,  were  borrowed  principally  from  the  coutume  of  Paris, 
while  those  affecting  other  property  than  buildings  were  derived  from  the  Roman 
law.     2  Law  Mag.  &  Rev.  8. 

2  Ersk.  Inst.,  fol.  ed.  352  -  370.  See  also  3  Burge,  Col.  &  F.  Law,  400  ;  post, 
chap.  3,  sect.  12. 

3  Lampman  v.  Milks,  21  N.  Y.  505  ;  Durel  v.  Boisblanc,  1  La.  Ann.  407 ; 
Pheysey  v.  Vicary,  16  Mees.  &W.  484 ;  Polden  v.  Bastard,  4  B.  &  S.  258  ;  Suffield 
V.  Brown,  10  Jur.  N.  S.  Ill  ;  Kerr  v.  Kerr,  14  Louis,  177. 

2 


18  THE  LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

It  may  be  further  added,  that  in  affirmative  easements  the 
servient  tenement  must  permit  some  act  to  be  done  thereon  by 
the  owner  of  the  dominant  estate,  such  as  passing  over  it  as 
a  way,  discharging  water  upon  it  from  a  channel  or  spout  or 
eaves  of  his  house.  In  negative  easements,  the  owner  of  the 
servient  estate  is  prohibited  from  doing  something  upon  his 
own  land  which  he  otherwise  might  do,  such  as  not  building 
upon  the  same,  when  by  so  doing  he  obstructs  the  light  and 
air  from  reaching  the  dominant  estate,  or  not  digging  in  his 
soil  so  as  to  weaken  the  foundations  of  the  house  standing  on 
the  dominant  estate,  and  the  like.^ 

18.  An  instance  of  a  negative  easement  or  servitude  is 
found  in  Pitkin  v.  Long  Island  R.  R.  Company,  in  the  obli- 
gation which  the  respondents  entered  into  with  a  land-owner, 
to  stop  their  cars  at  a  particular  place  adjoining  his  property. 
The  court  held  it,  in  substance,  an  easement  or  servitude, 
binding  upon  the  property  of  the  company,  and  an  interest 
in  their  land  in  favor  of  the  land-owner.  The  land  proprie- 
tor in  such  case  had  a  negative  easement  in  the  property  of 
the  railroad  company,  whereby  he  might  restrict  them,  as 
owners  of  a  servient  tenement,  in  the  exercise  of  general  and 
natural  rights  of  property,  so  as  to  compel  them  to  use  it  in 
a  particular  way,  by  keeping  certain  erections  thereon,  and 
stopping  with  their  trains  of  cars  at  a  particular  place  for  his 
use  and  benefit  as  tlie  owner  of  the  adjacent  land,  which  thus 
became  the  dominant  tenement.  It  was,  tlierefore,  held  to  be 
an  incorporeal  hereditament,  the  right  or  title  to  which  could 
only  be  acquired  by  a  grant  or  deed  under  seal,  or  by  pre- 
scription.^ 

19.   The  instance  given  in  a  reported  case,  illustrat- 
[*15]  ing  the  *distinction  between  natural,  legal,  and  con- 
ventional casements,  in  respect  to  their  origin,  is  that 
of  the  natural  servitude  to  which  a  lower  field  is  subject,  to 

1  Tud.  Lead.  Cas.  107. 

'^  Pitkin  V.  Long  Island  R.  II.  Co.,  2  Barb.  Ch.  221,  231.  See  also  Day  v. 
New  Yoik  Central  K.  11.  Co.,  31  Barb.  548.  Greene  v.  Crcighton,  7  11.  I.  1  ; 
post,  pp.  *G3,  *508. 


Sect.  1.]      NATURE,   CLASSIFICATION,  ETC.    OF   EASEMENTS.  19 

receive  the  surface  water  which  flows  on  to  a  lower  level 
from  a  higher  one.^ 

Though  this  is  treated  of  more  at  length  in  a  later  stage  of 
the  work,  it  may  he  remarked  that  such  a  servitude  is  only 
regarded  as  a  natural  one,  in  respect  to  the  water  which  is 
naturally  upon  the  higher  field,  and  not  as  to  such  as  is 
created  by  the  industry  of  man.  While  the  owner  below 
may  not  do  anything  to  prevent  the  water  naturally  thereon 
from  flowing  from  the  upper  field  upon  his  own,  the  upper 
one  has  no  right  to  do  anything  upon  his  land  to  increase 
the  burden  upon  the  field  below,  beyond  what  may  arise 
from  a  proper  cultivation  of  the  same  for  agricultural  pur- 
poses. And  even  in  so  doing  he  may  not  dig  ditches  to 
discharge  water,  that  naturally  stands  stagnant  upon  his 
own  land,  on  to  that  of  a  lower  proprietor.^ 

20.  The  term  "  natural  easements,"  as  applicable,  es- 
pecially, to  the  case  of  flowing  water,  is  often  made  use 
of  by  courts  of  common  law,  and  is  not  likely  to  mislead 
the  reader,  inasmuch  as  the  context  usually  shows  in  what 
sense  the  term  is  employed.  But  as  it  will  appear  hereafter 
that  an  easement,  when  technically  considered,  is  an  interest 
which  one  man  has  in  another's  estate  by  grant,  or  its 
equivalent,  prescription,  it  seems,  at  first  thought,  to  be 
inconsistent  to  characterize  what  belongs  to  an  estate  as 
inseparably  incident  thereto,  and  forming  a  part  and  parcel 

1  Laumier  v.  Francis,  23  Mo.  181.  See  Ersk.  Inst.,  fol.  ed.  352;  Orleans 
Navigation  Co.  v.  Mayor  of  New  Orleans,  2  Mart.  214  ;  2  Fournel,  Traitc'  du 
Voisinage,  400. 

The  French  law  reckons  five  natural  servitudes,  viz.:  1.  The  flowing  of  wa- 
ter from  higher  to  lower  land.  2.  The  right  to  a  spring  or  fountain  of  water  on 
the  part  of  the  owner  in  whose  land  it  rises.  3.  The  right  of  a  land-owner  to  a 
watercourse  flowing  through  or  forming  a  boundary  of  his  land.  4.  The  fixing 
and  maintaining  boundaries  between  lands  of  adjacent  owners ;  and  5.  Building 
and  maintaining  fences  for  separating  the  lands  of  different  owners.  1.  Lapage 
Desgodets,  15. 

2  Martin  i;.  Jett,  12  La.  501;  La.  Civ.  Code,  Art.  656;  Sowers  v.  Shiff,  15 
La,  An.  301 ;  Duranton,  Cours  de  Droit  Fran^ais,  159;  Delahoussaye  v.  Judice, 
13  La.  An.  587  ;  Orleans  Navigation  Co.  v.  Mayor  of  New  Orleans,  3  Mart. 
214 ;  post,  chap.  3,  sect.  1,  pi.  19. 


20  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

thereof,  by  the  name  of  easement  or  servitude.  It  may  be 
in  many  and  perhaps  most  respects  like  an  easement,  and 
may  be  treated  of  accordingly,  and  yet  will  hardly  come 
within  the  requisites  of  what  constitutes  an  easement  at 
common  law.  And  Erie,  J.,  in  Stokoe  v.  Singers, 
[*16]  *accordingly  says :  "  The  right  to  the  natural  flow  of 
water  is  not  an  easement,  but  a  natural  right."  ^ 

21.  By  the  French  law,  there  may  be  such  an  arrange- 
ment of  the  parts  of  two  estates  belonging  to  the  same 
person,  that,  for  fancy  or  convenience,  the  use  of  the  one  is 
made  available  to  the  enjoyment  of  the  other.  Thus,  for 
instance,  the  one  may  enjoy  the  advantage  of  a  look-out  or 
prospect  across  the  other,  and  for  this  purpose  windows  may 
have  been  opened  in  the  latter ;  or  doors  may  have  been 
opened  through  the  walls  separating  the  estates,  by  which 
communication  may  be  had  with  the  street ;  or  water  may 
be  conducted  by  an  aqueduct  from  a  pond  or  a  fountain 
which  belongs  to  the  owner  of  one  estate  into  a  meadow 
which  he  may  wish  to  water.  And  these  may  be  mutual, 
each  estate  having  for  this  purpose  an  advantage  in  the 
other,  reciprocally,  or  the  arrangement  may  be  such  that 
only  one  of  the  two  estates  enjoys  a  benefit  from  the  other. 
The  arranging  and  adapting  the  two  estates  in  this  way  to 
each  other  is  called  Destination  du  pere  de  famille.  But 
this  does  not  extend  to  discontinuous  easements  like  rights 
of  way  .2 

So  long  as  both  estates  belong  to  the  same  person,  though 
the  uses  thus  made  of  one  estate  for  the  benefit  of  the  other 
may,  in  some  sense,  be  a  service,  it  cannot  be  a  servitude  in 
the  eye  of  the  law,  for  nemini  res  sua  servit  jure  servitutis.^ 
But  if  the  owner  convey  one  of  these  estates  to  one,  and 
another  to  another,  or  they  come  to  different  heirs  by  his 
death,  this  service,  so  far  as  it  is  continuous  and  apparent  in 

1  Stokoe  V.  Singers,  8  Ellis  «&  B.  36  ;  2  Fournel,  Traite'  du  Voisinage,  400. 

2  Cleris  v.  Tieinan,  15  La.  An.  316 ;  Fisk  v.  Hubcr,  7  La.  An.  323. 

3  Gary  v.  Daniels,  8  Met.  466;  Mabie  v.  Mattesou,  17  Wis.  10. 


Sect.  1.]      NATURE,   CLASSIFICATION,   ETC.   OF  EASEMENTS.  21 

its  character,  becomes  a  servitude  in  favor  of  the  one  over  and 
upon  the  other  estate.  And  among  these  may  be  mentioned 
the  servitude  of  light  and  air,  of  supplying  water,  of  drain, 
and  the  like. 

Though  artificial  in  their  creation,  they  have  some  of  the 
qualities  of  natural  easements,  as  they  pass  with  the  separate 
estates  in  the  manner  of  natural  easements,  without  being 
mentioned  in  the  deed.  That  wliat  had  been  a  simple  use 
or  service,  while  the  estates  belonged  to  the  same  proprietor, 
is  by  the  law  changed  into  a  servitude  at  the  moment 
*of  their  separation,  is  founded  upon  the  presumption  [*17] 
which  the  law  raises  of  an  agreement  by  both  parties 
to  leave  things  in  the  same  state  into  which  they  have  been 
put,  if  there  is  no  stipulation  for  changing  it.  The  law  on 
this  subject,  which  will  be  found  to  be  very  analogous  to  that 
which  prevails  in  England  and  this  country  upon  the  division 
of  heritages,  where  one  part  has  had  the  use  and  enjoyment 
of  the  other,^  is  declared  in  the  Code,  though  it  was  borrowed 
from  the  early  coutumes  of  several  of  the  provinces  of  France. 
Articles  692  and  694  of  the  Code  are  the  text  upon  which 
several  commentators  have  treated,  when  considering  this 
subject,  among  whom  are  Pardessus,  Toullier,  and  Merlin. 
The  language  of  Art.  692  is  :  "  An  appointment  by  the 
father  of  a  family  has  the  effect  of  writing  in  regard  of  con- 
tinual and  apparent  servitudes."  Art  694  :  "  If  the  owner 
of  two  heritages,  between  which  there  exists  an  apparent 
mark  of  servitude,  dispose  of  one  of  the  two  heritages  with- 
out the  contract  containing  any  agreement  relative  to  the 
servitude,  it  continues  to  exist  actively  or  passively  in  favor 
of  the  property  aliened,  or  upon  the  property  aliened."  ^ 

1  Post,  sect.  3,  pi.  26. 

2  Code  Nap.,  Barrett's  trans). ,  Art.  G92,  694  ;  Lalaure,  Traite  des  Servitudes 
Re'elles,  liv.  3,  ch.  9 ;  Pardessus,  Traite'  des  Servitudes,  430,  ed.  1829  ;  3  Toullier, 
Droit  Civil  Fran9ais,  447  et  seq. ;  Merlin,  Repertoire  de  Jurisprudence,  tit.  Servi- 
tude, H  17-19;  3  Burge,  Col.  &  F.  Law,  439;  1  Fournel,  Traite  du  Voisinage, 
§  110;  La.  Civ.  Code,  §  763;  Lavillebeuvre  v.  Cosgrove,  13  La.  Ann.  323;  Sey- 
mour V.  Lewis,  13  N.  J.  443. 


22  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cu.  I. 

Though  the  subject  will  be  resumed  in  another  part  of  the 
work,  it  may  be  well  to  remark  here  that  this  doctrine  of  the 
French  law  has  obtained  a  place  in  the  English  Common  law, 
rather  by  way  of  illustration  and  analogy,  than  as  a  govern- 
ing principle.  In  one  case  the  Lord  Chancellor  took  occasion 
to  say  :  "  This  comparison  of  the  disposition  of  the  owners  of 
two  tenements  to  the  destination  du  pere  de  famille  is  a  mere 
fanciful  analogy,  from  which  rules  of  law  ought  not  to  be 
derived."  ^ 

That  servitude  known  to  the  civil  law  under  the  name  of 
"  Non  officiendi  luminibus  vel  prospectui,"  was  practically 
acknowledged  as  one  known  to  the  common  law,  and  as 
binding  upon  the  owners  of  an  estate,  by  the  courts  of  New 
York,  in  a  case  where  the  owner  of  several  house-lots  lying 
together  sold  one  of  them,  and  at  the  same  time  covenanted 
with  his  vendee  that  the  other  land  belonging  to  him  in  front 
of  that  sold  should  be  kept  open  for  j)ublic  use.^ 


[*18]  *SECTION   II. 

INCIDENTS    TO   ACQUIRING   RIGHTS    OF   EASEMENT,   ETC. 

1.  Easements  can  only  be  acquired  by  Grant. 

2.  Licenses  are  revocable. 

3.  Modes  of  evidencing  Grants  of  Easements. 

4.  How  far  Presumption  of  a  lost  Deed  answers  to  Prescription. 

5.  Of  creating  Easements  by  Reservation. 

6.  Of  mutual  Grants  and  Reservations  of  Easements. 

7.  Of  reserving  an  Easement  out  of  Grantee's  Land. 

8.  By  what  Form  of  Deed  an  Easement  maj'  be  created. 

9.  10.  Easements  pass  with  Estates  to  which  appurtenant. 

11.  Easements  when  appurtenant  to  Easements. 

12.  Appurtenant  Easements  pass  with  the  principal  Estate. 

13.  Easements  follow  both  dominant  and  servient  Estates. 

14.  Easements  not  separable  from  Estates  to  which  appurtenant. 

15.  Easements  follow  the  several  Parts  of  the  principal  Estates. 

1.  Before  proceeding  to  examine  the  characteristics  of  the 

1  Suffield  V.  Brown,  10  Jur.  N.  S.  111. 

2  ]).  8,  2,  15  ;  Hills  v.  Miller,  3  Paij^e,  254,  257  ;  Barrow  v.  llichards,  8  Paige, 
351 ;  Ersk.  Inst.,  foL  cd.  356. 


Sect.  2.]  INCIDENTS   TO   ACQUIRING   EASEMENTS.  23 

several  kinds  of  easements  known  to  the  common  law,  and 
the  rules  applicable  to  these,  it  seems  proper  to  consider  cer- 
tain general  principles  which  are  common  to  all,  in  order  to 
save  the  necessity  of  repetition.  And  first,  as  to  the  mode 
of  their  acquisition. 

These,  being  interests  in  land,  can  only  be  acquired  by 
grant,  and  ordinarily  by  deed,  or  what  is  deemed  to  be 
equivalent  thereto,  a  parol  license  being  insufficient  for  the 
purpose.^ 

2.  A  parol  license  to  erect  a  dam  upon  another's 
land,  for  *instance,^  or  to  cut  and  maintain  a  ditch   [*19] 
thereon  for  drawing  water  to  the  licensee's  land,  is 
revocable  at  will  at  common  law,  and  in  one  case  was  held 
to  be  so  after  an  enjoyment  of  eighteen  years.^ 

The  law  of  the  several  States  will  be  found,  it  is  believed, 
to  be  the  same  as  that  just  stated,  so  far  as  it  applies  to  un- 
executed licenses.  But  there  is  an  exception  in  some  of 
them,  in  the  case  of  executed  licenses,  when  the  licensee  has 
incurred  expense  in  the  execution  of  the  same,  equity  in 
such  case  holding,  for  purposes  of  remedy,  that  such  shall 
be  deemed  an  executed  contract.  But  in  most  of  the  States, 
the  doctrine  that  no  permanent  estate  in  lands  can  be  created 
by  parol,  prevails ;  and  it  is  accordingly  held,  that  a  licensee 
holds  his  privilege  of  using  or  occupying  the  licenser's  land, 
whatever  it  is,  strictly  at  the  will  of  the  licenser,  who  may 

,  1  Morse  v.  Copeland,  2  Gray,  302 ;  Bryan  v.  Whistler,  8  Barnew.  &  C.  288 ; 
Cook  V.  Stearns,  11  Mass.  533 ;  Dyer  v.  Sanford,  9  Mete.  395 ;  Hewlins  v.  Ship- 
pam,  5  Barnew.  &  C.  221 ;  Miller  v.  Auburn  &  Syracuse  R.  R.  Co.,  6  Hill,  61  ; 
Fentiman  v.  Smith,  4  East,  107;  Nichols  v.  Luce,  24  Pick.  102;  Mumford  v. 
Whitney,  15  Wend.  380;  Middleton  v.  Gregorie,  2  Rich.  637;  Pitkin  r.  Long 
Island  R.  R.  Co.,  2  Barb.  Ch.  221  ;  Kenyon  v.  Nichols,  1  R  I.  411  ;  Collam  v. 
Hocker,  1  Rawle,  108;  Fuhr  v.  Dean,  26  Mo.  116;  Orleans  Navigation  Co.  v. 
Mayor  of  New  Orleans,  2  Mart.  214,  229,  236  ;  Cocker  v.  Cowper,  1  Crompt.  M. 
&  R.  418;  Wood  i'.  Leadbitter,  13  Mees.  &  W.  83S ;  Adams  v.  Andrews,  15  Q. 
B.  284;  Thompson  v.  Gregory,  4  Johns.  81  ;  Bird  v.  Higginson,  2  Adolph  &  E. 
696 ;  Somerset  v.  Fogwcll,  5  Barnew.  &  C.  875.  Sedden  v.  Del.  &  H.  Canal, 
29  N.  Y.  639. 

2  Mumford  v.  Whitney,  15  Wend.  380 ;  Cook  v.  Stearns,  11  Mass.  533, 

»  Cocker  V.  Cowper,  1  Crompt.  M,  &  R.  418. 


24  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

at  his  pleasure  revoke  the  same.  The  subject  is  fully  ex- 
amined in  2  Am.  Lead.  Cases,  682-706.  The  States  which 
adopt  the  rule  of  equity  above  stated  are  Pennsylvania,  In- 
diana, and  lowa.^  Those  which  retain  the  doctrine  of  the 
common  law  are,  among  others,  the  following :  New  York, 
Massachusetts,  Connecticut,  North  Carolina,  South  Carolina, 
Rhode  Island,  Wisconsin,  Illinois,^  and  New  Hampshire;^ 
while  in  Vermont  the  question  is  left  undecided  in  the  case 
cited  below.*  But  the  distinction  which  will  hereafter  be 
more  fully  considered,  between  a  license  to  do  an  act  upon 
the  licenser's  land,  and  that  to  do  it  upon  the  land  of  the 
licensee,  should  not  be  overlooked,  since  the  last,  when  exe- 
cuted, is  not  revocable.^ 

3.  The  grant  by  which  an  easement  is  created  may  be  evi- 
denced in  several  ways.  It  may  always  be  done  by  the  pro- 
duction of  an  existing  deed.  So  it  may  be  by  prescription, 
or  a  long  enjoyment  of  the  easement  claimed,  under  circum- 
stances which  raise  an  implication  of  title  originally  acquired 
by  grant. 

So  the  law  often  regards  the  enjoyment  of  an  easement  as 
evidence  that  a  deed  once  existed,  though  now  lost,  and  gives 
to  this  presumption  the  same  effect  in  establishing  a  title  as 
if  the  deed  were  produced. 

4.  The  latter  mode  of  treating  the  enjoyment  of  an  ease- 
ment as  evidence  of  a  title  to  the  same  by  deed,  has  taken 
the  place,  in  modern  practice,  of  the  ancient  doctrine  of  pre- 
scription.    The  chief  difference  between  them  consists  mere- 

1  Rerick  v.  Kern,  14  S.  &  R.  267  ;  Lacy  v.  Arnett,  33  Penn.  169  ;  post,  p.  *318 ; 
Snowdcn  v.  Wilas,  19  Ind.  14;  Stephens  v.  Benson,  19  Ind.  369;  Wickersham 
V.  Orr,  9  Iowa,  260  ;  Beatty  v.  Gregory,  17  Iowa,  114. 

2  Seldcn  i'.  Del.  &  Hud.  Canal,  29  N.  Y.  639  ;  Wolfe  v.  Frost,  4  Sand,  ch.  72 ; 
Drake  r.  Weils,  11  Allen,  141,  144;  Foot  v.  N.  H.  &  N.  Co.,  23  Conn.  223; 
Bridges  v.  Purcell,  1  Dee.  &  Bat.  (Law)  492,  497;  Trammell  v.  Trammell,  11 
Rich.  (Law)  471  ;  Foster  v.  Browning,  4  R.  I.  47  ;  Hazlcton  v.  Putnam,  3 
Chand.  (Wis.)  117  ;  French  v.  Owen,  2  Wis.  250;  Woodward  v.  Suly,  11  111. 
1.57;  1  Wash.  R.  P.  411. 

3  Carlcton  v.  Rcdington,  1  Foster,  308. 
*  Hall  i:  ClioO'er,  13  Verm.  150,  157. 

5  Post,  p.  *560. 


Sect.  2.]  INCIDENTS   TO   ACQUIRING   EASEMENTS.  25 

\y  in  this.  To  constitute  what  was,  technically,  considered 
a  prescription,  the  use  and  enjoyment  by  which  the  same  was 
established  were  required  to  be  beyond  the  memory  of  man. 
So  that  it  might  always  be  rebutted  by  showing  by  testimony, 
if  such  was  the  case,  when  the  enjoyment  of  the  right  claimed 
had  its  origin  or  beginning.  Whereas,  by  raising  a  presump- 
tion from  a  user  and  enjoyment,  that  a  deed,  now  assumed 
to  be  lost,  was  once  given  to  the  claimant  granting  the  case- 
ment claimed,  the  effect  originally  given  to  a  prescription  is 
gained,  after  such  enjoyment  shall  have  been  continued  for 
a  length  of  time  answering  to  the  period  of  limitation  be- 
yond which  one  dispossessed  of  lands  is  not  at  liberty  to  re- 
gain his  seisin  by  making  entry  for  that  purpose. ^  In 
such  cases,  in  the  language  of  Lord  Mansfield,  *"  not  [*20] 
that  the  court  really  thinks  a  grant  has  been  made," 
but  they  presume  the  fact  for  the  purpose,  and  from  the 
principle  of  quieting  the  possession .^  And  it  may  be  re- 
marked, that  practically,  in  modern  use,  the  distinction  be- 
tween the  ancient  doctrine  of  technical  prescription,  and  the 
modern  one  of  a  presumed  grant,  where  the  deed  has  been 
lost,  is  not  observed  when  speaking  of  titles  acquired  by 
long-continued  user  and  enjoyment ;  the  terms  prescription 
and  prescriptive  rights  being  now  used  to  express  the  whole 
class  of  titles,  the  evidence  of  which  depends  upon  such  user 
and  enjoyment. 

Cases  may  arise  where  the  owner  of  a  parcel  of  land  de- 
pends for  a  right  of  way  to  the  same,  for  instance,  upon  both 
an  implied  grant  and  a  grant  of  a  prescriptive  right.  Thus, 
where  there  were  three  lots  of  land.  A,  B,  and  C  ;  A,  adjoin- 
ing the  highway,  belonged  to  the  same  one  who  owned  C,  to 
which  he  had  a  prescriptive  right  of  way  from  A  over  B. 
The  owner  of  A  and  C  sold  the  latter  to  a  stranger,  who 

1  Morse  v.  Copeland,  2  Gray,  302  ;  Gayctty  v.  Bethune,  14  Mass.  49  ;  1  Greenl. 
Ev.,  ^  17,  note  ;  Sherwood  v.  Burr,  4  Day,  244  ;  Rooker  v.  Perkins,  14  Wis.  82 ; 
post,  sect.  4,  pi.  2. 

2  Eldridge  v.  Knott,  Cowp.  214  ;  Campbell  v.  Smith,  3  Halst.  141. 


26  THE  LAW   OF   EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

had  no  access  to  the  same  except  over  A  and  B.  It  was  held 
that  he  thereby  acquired  a  right  of  way  by  an  implied  grant 
as  one  of  necessity  over  A,  and  a  prescriptive  right  over  B, 
as  being  appurtenant  to  C.^ 

5.  In  treating  of  acquiring  an  easement,  like  a  right  of 
way  in  alieno  solo,  by  grant,  it  is  common  to  couple  with  it  a 
lili;e  acquisition  by  reservation,  although  it  is  said  not  to  be 
technically  true  that  a  way  can  be  created  for  tlie  first  time 
by  exception  or  reservation,  since  it  is  neither  a  parcel  of  the 
thing  granted,  nor  does  it  issue  out  of  the  thing  granted. 
A  way,  therefore,  reserved,  as  the  word  is  used  in  a  popular 
sense,  is  strictly  an  easement  newly  created  by  way  of  a 
grant  from  the  grantee  in  the  deed  of  the  estate  to  the  grant- 
or ;  and  the  same  is  true  of  hawking,  fishing,  fowling,  and 

the  like.2 
[*21]        *And  it  is  said  that  "  what  will  pass  by  words  in 
a  grant  will  be  excepted  by  like  words  in  an  excep- 
tion." 3 

Still,  it  is  competent  for  a  party  who  is  the  grantor  of  an 
estate  to  create  a  right  of  way  over  the  same,  in  his  own 
favor,  either  in  gross  or  annexed  to  his  other  land,  by  a  reser- 
vation thereof  inserted  in  his  deed  of  the  estate ;  or  it  may 
be  done,  though  in  terms  it  be  an  exception.  Tlie  court 
say :  "  We  consider  it  immaterial  whether  the  easement  for 
the  way  intended  to  be  established  is  technically  considered 
as  founded  on  an  exception,  a  reservation,  or  an  implied 
grant."  * 

If  created  by  reservation,  it  must  be  to  the  grantor  him- 
self. And  the  case  cited  below,  while  it  illustrates  the  dis- 
tinction between  an  exception  and  a  reservation  in  a  grant, 
will  serve  to  show  the  construction  which  courts  give  to  res- 
ervations when  of  an  easement.     A  granted  to  B  a  parcel  of 

1  Leonard  v.  Leonard,  2  Allen,  543. 

'^  Durhiim  &  Sund.  R.  M.  Co.  v.  Walker,  2  Q.  B.  940  ;  Wickliam  v.  Hawker, 
7  Mecs.  &  W.  76 ;  Doc  v.  Loek,  2  Adolph.  &  E.  705.  See  Dyer  v.  Sanford,  9 
Mete.  395. 

2  Shcpp.  Toiuhst.  100.  ^  Bowcn  v.  Conner,  6  Cush.  132. 


Sect.  2.]  INCIDENTS   TO   ACQUIRING   EASEMENTS.  27 

land,  excepting  one  acre  at  a  certain  corner,  "  on  which 
there  is  a  tannery,"  and  reserved  to  himself  and  his  use  "  a 
certain  well  and  water-works  laid  down  for  the  purpose  of 
supplying  the  tannery  aforesaid  with  water."  It  was  held 
to  create  an  easement  in  the  granted  land  in  favor  of  the 
part  excepted,  to  which  it  became  appurtenant,  and  it  passed 
with  the  acre  through  successive  grantors  as  incident  or  ap- 
purtenant to  the  same.  Nor  was  the  use  of  the  water  re- 
stricted to  the  tannery,  but  was  a  general  reservation  of  the 
right  of  water. ^ 

But  easements  often  pass  by  construction,  by  grant  which 
the  law  would  not  reserve  by  implication.  As  where  one 
granted  land  which  was  flowed  by  a  dam  on  his  own  land,  it 
was  held  that  he  did  not  impliedly  reserve  a  right  to  flow  it. 
Whereas,  if  he  granted  or  devised  the  mill  or  land  on  which 
the  dam  stood,  he  would  grant  the  right  to  flow  the  land  as 
then  flowed  by  the  dam.^ 

In  respect  to  whether  the  reservation  is  of  a  perpetual 
interest,  like  a  fee,  in  the  easement  reserved,  the  question 
seems  to  turn  upon  whether  it  is  a  personal  right,  an  ease- 
ment in  gross,  or  one  for  the  benefit  of  the  principal  estate 
and  its  enjoyment,  whoever  may  be  the  owner.  In  the  latter 
case,  it  is  held  to  be  permanent  right  appurtenant  to  the 
principal  estate  in  the  hands  of  successors  or  assigns,  with- 
out words  of  limitation.  The  courts  of  Maine  treat  such  a 
reservation  as  an  exception,  to  obviate  the  objection.^ 

6.  So  where  tenants  in  common  divided  their  estates,  and 
in  the  deed  of  one  part  the  grantor  reserved  a  right  of  way 
over  the  granted  part  for  the  benefit  of  the  other  jjAi't,  it  was 
held  to  create  an  easement  in  favor  of  the  latter,  which  ran 
with  it  into  whosever  hands  it  should  come.'^ 

1  Borst  V.  Empic,  1  Seld.  33. 

2  Burr  V.  Mills,  21  Wend.  272,  274. 

3  Kiirmuller  v.  Krotz,  18  Iowa,  359;  Winthrop  v.  Fairbanks,  41  Maine,  312; 
Smith  V.  Ladd,  41  Maine,  320 ;  Bowcn  v.  Connor,  6  Cash.  132.  In  Borst  v.  Era- 
pie,  sup.,  the  reserve  was  to  the  grantor  and  his  use  without  the  word  "  heirs." 

*  Mendell  v.  Delano,  7  Mete.  176 ;  Smith  v.  Higbee,  12  Vt.  113  ;  Karmuller  v. 
Krotz,  18  Iowa,  359. 


28  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

So  where  one  granted  land  to  another,  which  adjoined 
other  lands  which  belonged  to  him,  and  reserved  in  his  deed 
a  right  of  way  across  the  parcel  granted,  in  favor  of  his 
other  lands,  and  at  the  same  time  gave  to  the  parcel 
granted  a  right  of  way  across  these  other  lands  of  the 
grantor,  it  was  held  that  he  thereby  created  rights  of  way 
appurtenant  to  both  the  parcels,  which  passed  with  these 
parcels  in  the  subsequent  conveyances  thereof,  whether  men- 
tioned or  not  in  the  deeds  as  existing  easements.^ 

7.  And  this  case  is  put  by  Shaw,  C.  J.,  in  Dyer  v.  San- 
ford,  above  cited,  by  way  of  illustration.  There  are  three 
adjoining  tenements.  Two  of  them,  the  first  and  third,  be- 
long to  A  ;  the  middle  one  to  B.  B  grants  to  A  the  right  by 
deed  to  drain  No.  1,  through  No.  2,  into  and  through  No.  3, 
into  a  common  sewer ;  and  inserts  in  the  deed,  that  he,  B, 

is  to  have  a  right  to  enter  his  drain  into  the  drain  of 
[*22]   A,  *and  thereby  to  drain  No.  2  through  No.  3,  into 

the  common  sewer.  If  A  accepts  this  deed,  and  con- 
structs a  drain  from  No.  1  to  and  through  No.  3,  B  thereby 
acquires  a  right  to  enter  his  drain  into  the  same,  though  it 
cannot  technically  be  regarded  as  a  reservation.^ 

So,  in  an  early  case,  where  the  owner  of  land  "  granted 
and  agreed  with  A.  B.,  his  heirs  and  assigns,  that  it  should 
be  lawful  for  them  at  all  times  afterwards  to  have  and  to  use 
a  way  by  and  through  a  close,"  &c.,  it  was  held  to  be  an 
actual  grant  of  a  way,  and  not  a  covenant  only,  for  the  en- 
joyment of  such  right.^ 

8.  It  is  held  in  Maryland,  that,  while  a  right  of  way  de 
novo  could  be  created  by  a  deed  of  grant  or  lease,  it  could 
not  be  by  deed  of  bargain  and  sale,  though  an  existing  right 
of  way  could  be  passed  or  transferred  by  a  deed  of  bargain 
and  sale,  and  required  all  the  solemnities  necessary  to  pass 
estates  by  such  deeds.* 

1  Brown  v.  Thissell,  6  Cash.  254.  2  Dyer  v.  Sanford,  9  Mctc.  395,  405. 

3  Holmes  V.  Seller,  3  Lev.  305  ;  Gibert  v.  Peteler,  38  Barb.  514. 
*  Hays  V.  Riehardson,  1  Gill  &  J.  366. 


Sect.  2.]  INCIDENTS   TO   ACQUIRING  EASEMENTS.  29 

9.  If  now  these  two  modes  of  acquiring  easements,  by 
grant  and  prescription,  are  considered  separately,  the  sub- 
ject of  a  title  by  grant  also  divides  itself  into  express  grants, 
and  grants  by  implication  or  construction  of  law. 

Before,  however,  pursuing  the  subject  under  these  several 
heads,  it  may  be  well  to  state,  that,  when  an  easement  has 
been  acquired  by  either  of  these  modes  in  favor  of  a  dom- 
inant over  a  servient  estate,  it  passes  to  the  respective  own- 
ers of  these  estates  as  an  easement  in  favor  of  the  one,  and 
a  servitude  or  burden  upon  the  other,  into  whosever  hands 
the  respective  estates  may  come.  The  easement,  in  such 
case,  becomes  appendant  or  appurtenant,  as  it  is  called,  to 
the  estate  in  whose  favor  it  has  been  created  or  acquired, 
and,  as  the  law  expresses  it,  runs  with  it.  The  terms  ap- 
pendant and  appurtenant  are  defined  in  the  Termes  de  la 
Ley  as  "  things  that  by  term  of  prescription  have  be- 
longed, *appertained,  and  are  joined  to  another  prin-  [*23] 
cipal  thing,  by  which  they  pass  and  go  as  accessory 
to  the  same  principal  thing,"  ttc.  And  it  is  said  that,  "  to 
make  a  thing  appendant  or  appurtenant,  it  must  agree  in 
quality  and  nature  to  the  thing  whereunto  it  is  appendant 
or  appurtenant,  as  a  thing  corporeal  cannot  properly  be  ap- 
pendant to  a  thing  incorporeal,  nor  a  thing  incorporeal  to  a 
thing  corporeal."  But  it  is  not  true  that  the  term  is  appli- 
cable only  to  things  acquired  by  term  of  prescription.  Thus, 
in  the  cases  above  cited,  in  the  first,  one  sold  a  house-lot  in 
front  of  which  was  an  open  area  belonging  to  him,  upon 
which  he  covenanted  that  no  house  should  be  erected,  but 
that  the  same  should  be  always  kept  open  as  public  prop- 
erty. Being  a  part  of  the  transaction  of  the  purchase  and 
sale,  and  a  consideration  for  the  same,  it  was  held  to  create 
an  easement  in  favor  of  the  lot  thus  sold,  and  that  the  first , 
grantee  thereof,  having  conveyed  the  same  to  another,  could 
not  release  it  to  the  vendor  or  his  assigns,  or  authorize  them 
to  erect  buildings  upon  this  open  space.  Nor  would  the 
easement  be  destroyed  by  a  division  of  the  estate  to  which 


80  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

the  easement  belonged.^  In  the  other,  A  granted  to  B  twenty 
acres  of  land,  and  also  a  right  to  dig  ore  in  another  parcel 
of  ten  acres.  And  the  question  was  whether  the  conveyance 
of  the  twenty  acres  carried  with  it  a  right  to  dig  ore  in  the 
other  parcel.  And  it  was  held  that  it  did  not,  but  that  the 
right  to  dig  ore  was  an  incorporeal  hereditament  and  a  ser- 
vitude in  and  upon  the  ten  acres,  but  not  appendant  to  the 
twenty  acres,  since  the  enjoyment  of  the  one  was  in  no  wise 
necessary  to  the  enjoyment  of  the  other.^ 

10.    A  recent  case  in  Massachusetts  will  serve,  also,  to  il- 
lustrate what  is  requisite  to  create  an  easement,  and  render 

the  same  appurtenant  to  an  estate,  and  to  show  that  a 
[*24]  right  *does  not  necessarily  become  appurtenant  to  an 

estate,  although  affecting  the  same,  and  granted  to  or 
reserved  by  the  tenant  thereof.  In  that  case,  A  owned  two 
estates  adjoining  each  other,  upon  one  of  which  was  a  dwel- 
ling-house having  a  projecting  part  in  the  rear  of  one  story 
in  height.  He  sold  the  latter,  subject  to  a  restriction  that 
the  owner  thereof  should  never  raise  the  projection  any 
higher  than  its  then  present  condition.  After  that  he  sold 
the  other  estate  to  the  plaintiff,  and  then  executed  a  release 
to  the  first  purchaser  of  the  restriction  upon  his  parcel,  and 
the  latter  proceeded  to  raise  the  projecting  part  of  his  house 
another  story.  The  plaintiff  brought  a  bill  in  equity  to  re- 
strain him,  on  the  ground  that  the  right  of  enjoying  his  es- 
tate free  from  such  an  obstruction,  which  originally  belonged 
to  his  grantor,  passed  as  an  easement  therewith  when  he 
purchased  it.  But  the  court  held  that  there  was  nothing 
in  the  deed  of  the  first  estate  which  showed  that  the  restric- 
tion was  intended  to  enure  to  the  benefit  of  the  estate  now 
owned  by  the  plaintiff,  nor  could  he,  therefore,  as  the  owner 
thereof,  avail  himself  of  a  right  which  his  grantor  had  se- 

1  Hills  I'.  Miller,  3  Paige,  254  ;  Ayl.  Pand.  312  ;  D.  8,  4,  12  ;  Whitney  v,  Lee, 
1  Allen,  198;  Whitney  v.  Union,  11  Gray,  359  ;  Brouwer  v.  Jones,  23  Barb.  160 ; 
Parker  v.  Nightingale,  6  Allen,  341. 

'^  Grubb  V.  Guildford,  4  Watts,  223,  244,  246. 


Sect.  2.]  INCIDENTS   TO   ACQUIRING  EASEMENTS.  31 

cured  to  liimself  without  rendering  it  appurtenant  to  the 
estate.^ 

Under  tlie  civil  law,  services  did  not  admit  of  a  division, 
and  therefore  a  way  or  a  road  through  a  man's  estate 
cannot  be  bequeathed  in  part  nor  taken  away  in  part, 
for  a  service  is  total,  in  toto  /undo,  and  total  in  every  part 
thereof.^ 

11.  There  is,  moreover,  a  kind  of  appendency  or  appurte- 
nancy  of  one  easement  to  and  upon  another  easement,  in 
some  cases,  which  is  sometimes  called  a  secondary  easement. 
It  passes  with  the  principal  easement  as  being  necessary  or 
convenient  to  the  enjoyment  of  the  same. 

Thus  in  Stenhouse  v.  Christian,  where  there  was  a  grant 
of  a  way  for  the  purpose  of  carrying  coals  across  a 
*certain  parcel  of  land  witJi  wagons,  wains,  and  other  [*25] 
carriages ;  it  was  held  that  the  grantee,  as  an  incident 
to  the  grant,  had  a  right  to  make  a  framed  wagon-track  along 
the  course  of  the  way  indicated  in  the  grant.^ 

So  in  Prescott  v.  Williams,  the  right  to  enter  upon  the 
land  of  another,  and  clear  out  obstructions  in  a  watercourse 
which  a  mill-owner  above  had  a  right  to  enjoy  through  such 
land,  was  held  to  be  an  incident  to  fuch  natural  easement  in 
the  nature  of  a  secondary  easement.* 

So  the  grant  of  a  right  of  pasturage  carries  the  right  of 
way  to  and  from  the  pasture.  So  that  of  drawing  water,  or 
of  fishing  or  hunting,  gives  a  right  of  access  and  egress  to 
and  from  the  estate  in  which  it  is  to  be  enjoyed.'^ 

But  after  all,  instead  of  these  ancillary  rights  being  some- 

1  Badger  v.  Boardman,  24  Law  Rep.  303 ;  Parker  v.  Nightingale,  6  Allen, 
348. 

2  Ayl.  Band.  311 ;  Dig.  8,  1,  6. 

3  Senhouse  v.  Christian,  1  T.  R.  560;  D.  8,  2,  19;  Ibid.  8,  4,  11,  1;  post, 
chap.  3,  sect.  1,  pi.  19;  2  Fournel,  Traite'  du  Voisinage,  404;  3  Toullier,  Droit 
Civil  Fran^ais,  500. 

*  Prescott  V.  Williams,  5  Mete.  429  ;  Prescott  v.  White,  21  Pick.  341 ;  Bract., 
fol.  232. 

6  Bract.,  fol.  232  a;  Code  Nap.,  Art.  696;  2  Fournel,  Traite'  du  "Voisinage 
404. 


32  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Ch.  I. 

thing  appurtenant  to  easements,  they  seem  rather  to  consti- 
tute an  essential  part  or  element  of  the  principal  easement 
itself,  and  will  be  further  treated  of  when  the  subject  of  inci- 
dents of  grants,  and  what  is  embraced  therein,  comes  to  be 
considered. 1 

12.  It  may  also  be  stated  in  this  connection,  in  order  to 
save  repetition,  that  if  an  easement,  like  a  right  of  way  over 
another's  land,  becomes  appurtenant  to  an  estate,  it  passes 
with  the  grant  of  the  principal  thing,  whether  such  grant,  in 
terms,  embraces  privileges  and  appurtenances  or  not ;  and 
this,  whether  it  is  necessary  to  the  enjoyment  of  the  granted 

estate  or  not.^ 
[*26]       *13.    Where,  therefore,  one  grants  or  reserves  a 

right  of  easement  over  one  parcel  of  land  in  favor  of 
another,  such  easement,  by  such  act  of  creation  or  annexation, 
would  become  incident  and  appurtenant  to  such  estates  re- 
spectively, and  pass  as  appurtenant  in  after  conveyances,  by, 
or  even  without,  the  word  appurtenances,  so  long  as  such 
estates  should  subsist  as  distinct  estates  in  different  proprie- 
tors. Nor  could  the  easement  be  separated  from  the  prin- 
cipal estate,  except  by  him  who  has  a  disposing  power  over 
the  estate.^  •         • 

But  this  rule  does  not  apply  where  there  is  a  convey- 
ance of  a  specific  parcel  of  land  carved  out  of  a  larger  one 
held  by  the  grantor,  and  described  by  metes  and  bounds. 
In  such  case,  nothing  would  pass  as  parcel  of  the  granted 
premises  which  was  a  matter  of  ease  and  convenience  only, 
except  what  is  included  within  the   boundaries   expressed 

1  Post,  sect.  3,  pi.  5. 

2  Kent  V.  Waite,  10  Tick.  138  ;  Atkins  v.  Bordman,  2  Mete.  4.57  ;  Bcaudely  v. 
Brook,  Cro.  Jac.  189  ;  Jaekson  v.  Hathaway,  15  Johns.  447;  Brown  v.  Thissell, 
6  Cash.  254  ;  Underwood  v.  Carney,  1  Cush.  285  ;  Smith  v.  Higbee,  12  Vt.  123  ; 
Staple  V.  Heydon,  6  Mod.  1  ;  Grant  v.  Chase,  17  Mass.  443  ;  Lawton  i;.  Rivers, 
2  M'Cord,  445  ;  Piekering  v.  Stapler,  5  Serg.  &  R.  107  ;  United  States  v.  Apple- 
ton,  1  Sumn.  402;  Morgan  v.  Mason,  20  Ohio,  401  ;  Harris  v.  Elliott,  10  Peters, 
54;  Karmuiler  v.  Krotz,  18  Iowa,  360. 

2  Kitger  v.  Parker,  8  Cush.  145 ;  French  v.  Braintrec  Manufacturing  Co.  23 
Pick.  216. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  33 

in  the  deed.^     Nor  does  it  apply  to  any  but  existing  case- 
ments.^ 

14.  And  though  a  man  may  acquire  an  easement  in  gross, 
like  a  right  of  way  over  another's  land,  separate  and  distinct 
from  the  ownership  of  any  other  estate  to  which  it  is  append- 
ant, yet  if  his  right  to  such  way  result  from  his  ownership  of 
a  parcel  of  land  to  which  it  is  appendant,  he  cannot  by  grant 
separate  the  easement  from  the  principal  estate  to  which  it 
is  appendant,  so  as  to  turn  it  into  a  way  in  gross,  in  the  hands 
of  his  grantee.^ 

15.  It  may,  accordingly,  be  stated  as  a  general  principle, 
that  if  an  easement  has  become  appurtenant  to  an  estate,  it 
follows  every  part  of  the  estate  into  whosever  hands 

the  *same  may  come  by  purchase  or  descent ;  "  qua-  [*27] 
cunque  servitus  fundo  debitur,  omnibus,  ejus  partibus 
debitur,^^  provided  the  burden  upon  the  servient  estate  is  not 
thereby  increased.* 


SECTION  III. 

OF   ACQUIRING   EASEMENTS   BY   GRANT. 

1.  How  Easements  may  be  created  by  grant. 

2.  Easements  never  presumed  to  be  in  gross. 

3.  No  one  but  the  owner  of  the  soil  can  grant  an  Easement. 

4.  No  tenant  in  common  can  create  Easements  in  Estates  in  common. 

5.  Implied  grants  of  Easements. 

6.  Easements  of  necessity  result  from  grants  or  reservations. 

7.  Nichols  V.  Luce.     All  Easements  the  result  of  grants. 

8.  Easements  by  grant  implied  from  having  been  used. 

9.  Cases  of  Easements  implied,  as  forming  a  part  of  the  thing  granted. 

1  Grant  v.  Chase,  17  Mass.  443. 

2  Russell  V.  Scott,  9  Cow.  279. 

3  Acroyd  v.  Smith,  10  C.  B.  164  ;  Year  B.  5  Hen.  VII.,  fol.  7,  pi.  15,  per  Fair- 
fax, J. ;  Woolr.  Ways,  16;  Garrison  v.  Rudd,  19  111.  .558. 

*  Orleans  Navigation  Co.  v.  Mayor  of  New  Orleans,  2  Mart.  233  ;  Lewis  v. 
Carstairs,  6  Whart.  193 ;  Watsou  v.  Bioren,  1  Serg.  &  R.  227  ;  Case  of  a  Pri- 
vate Road,  1  Ashm.  417  ;  Lansing  v.  Wiswall,  5  Denio,  213  ;  Garrison  v.  Rudd, 
19  III.  558  ;  post,  sect.  3,  pi.  38  ;  3  TouUier,  Droit  Civil  Fran<;ais,  494  ;  D.  8,  3, 
23,3. 

3 


34  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

10.  Cases  where  a  grant  carries  an  Easement  in  or  parcel  of  an  estate. 

11.  Cases  where  Easements  are  raised  by  grant,  and  not  by  reservation. 

12.  Reference  had  to  the  circumstances  of  estates  to  explain  grants. 

13.  Only  existing  Easements  pass  as  incident  to  grants  of  estates. 

14.  Appurtenant  Easements  limited  to  old  existing  rights. 

15.  Effect  of  grant  of  an  estate  with  "the  ways  now  used,"  &c. 

16.  "Privileges  and  appurtenances  "  does  not  create  an  Easement. 

17.  Effect  of  separating  a  mill  from  land,  upon  the  Easement  of  water. 

18.  When  the  grant  of  a  mill-power  implies  the  grant  of  land. 

19.  Grant  of  the  use  of  water  not  a  right  to  foul  it. 

20.  Hull  V.  Fuller.     How  grant  of  mill-rights  limited  and  defined. 

21.  Nothing  passes  by  implication  beyond  what  grantor  can  convey. 

22.  Easements  specially  granted  for  one  purpose  not  to  be  used  for  another. 

23.  Easements  created  or  affected  by  divisions  of  heritages. 

24.  Richards  v.  Rose.     Mutual  support  of  houses,  sold  separately. 

25.  Destinatio  dupcre,  tfc.     Easements  implied  by  grant. 
25  a.  Pyer  v.  Carter.     How  far  authority. 

26.  Continuous  Easements  used  with  the  whole,  pass  with  parts  of  a  heritage. 

27.  Elliott  V.  Rhett.     Artificial  Easements  becoming  part  of  a  heritage. 

28.  Lampman  v.  Milks.     Effect  of  a  change  in  a  heritage  upon  its  parts. 

29.  Light  and  air  of  one  part,  derived  from  another  part  of  a  heritage. 

30.  Support  of  one  part  of  a  heritage  passing  as  incident  to  another. 

31.  Thayer  v.  Payne.     Right  of  drain  from  one  part  of  a  heritage  over  another. 

32.  Hinchcliffe  v.  Kinnoul.     Easements  passing  because  in  use. 

[*28]  *33.  Pheysey  v.  Vickary.     Only  what  is  necessary  passes  with  parts  of  a  herit- 
age. 

34.  Only  continuous  and  apparent  Easements  pass  on  dividing  heritages. 

35.  Johnson  v.  Jordan.     When  a  drain  will  pass  or  not,  though  in  use. 

36.  State  of  premises  when  sold,  fixes  the  rights  of  the  several  owners. 

37.  Brakely  v.  Sharp.     Rule  as  to  Easements,  where  estates  are  divided. 

38.  As  to  Easements  extending  to  every  part  of  a  heritage. 

39.  Easements  connected  with  one  parcel  not  to  be  used  with  another. 

40.  Law  of  Louisiana  as  to  effect  of  dividing  heritages. 

41.  An  Easement  for  a  special  purpose,  limited  to  that  only. 

42.  In  what  cases  the  benefit  of  one  estate  to  another  becomes  an  Easement. 

43.  How  far  Easements  are  created  or  affected  by  estoppel. 

44.  Equitable  Easements,  how  created  and  enforced. 

1.  If  now  we  recur  to  the  mode  of  creating  an  easement 
by  grant,  it  may  be  by  deed  in  express  terms,  as  where  one 
owning  an  estate  grants  to  the  owner  of  another  estate  a 
right  to  enjoy  certain  privileges  in  or  out  of  the  grantor's 
estate,  which  does  not  give  tlie  grantee  a  right  to  enjoy  the 
estate  itself  by  exclusive  or  permanent  occupation.  So  it 
may  be  created  by  a  covenant  of  the  owner  of  one  estate  with 
the  owner  of  another  estate,  that  he  should  have  a  right  to 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  35 

enjoy  certain  profits  or  privileges  out  of  the  former,  as  has 
already  been  stated.^  And  Pollock,  C.  B.  says  :  "  It  cannot 
be  denied,  that  if  a  man  builds  a  house,  and  there  is  act- 
ually a  way  used  or  obviously  and  manifestly  intended  to 
be  used  by  the  occupiers  of  the  house,  the  mere  lease  of  the 
house  would  carry  with  it  the  right  to  use  the  way,  as  form- 
ing part  of  its  construction.  And  so  if  there  were  publicly 
exhibited,  prior  to  a  bill  of  sale  of  it,  a  model  of  the  house 
and  its  appurtenances  describing  the  right  of  way,  that  would 
have  the  same  effect.  So  if  a  plan  were  thus  exhibited  de- 
scribing the  right  of  way,  and  a  contract  of  purchase  or  lease 
were  entered  into  with  reference  to  that  plan,  that  might 
have  the  same  effect."  ^  Or  this  may  be  done  by  a  grant  of 
one  parcel  of  the  grantor's  land  to  another,  and  reserving 
similar  privileges  in  and  out  of  the  grantor's  premises  to 
himself  as  owner  of  the  remaining  parcel,  or  by  granting 
such  privileges  with  the  granted  parcel,  out  of  the  parcel 
.  so  retained.  A  grant  of  a  license  to  one  and  his  heirs  to 
hunt  upon  the  licenser's  land  must,  in  order  to  be  effectual, 
be  by  deed.  But  a  license  for  a  single  time  may  be  good, 
though  by  parol  only.^  And  where  an  easement  is  granted 
or  reserved  in  express  terms  by  deed,  the  only  question  ordi- 
narily open  for  consideration  concerns  the  proper  construc- 
tion of  the  language  of  the  deed.*  Nothing,  however,  passes 
as  incident  to  the  grant  of  an  easement,  but  what  is  requi- 
site to  a  free  enjoyment  of  the  privilege  granted.^  An  ease- 
ment may  be  created  subject  to  a  condition  subsequent,  and 
whether  it  is  so,  depends,  of  course,  upon  the  construction 
of  the  deed.  But  if  so  created  in  connection  with  and  ap- 
purtenant to  land  granted,  and  the  condition  bo  broken,  it 

1  Clark  V.  Way,  11  Rich.  Law,  624  ;  ante,  p.  *7  ;  Gibert  v.  Peteler,  38  Barb.  484, 
514;  Parker  v.  Nightingale,  6  Allen,  341  ;  Brouwer  v.  Jones,  23  Barb.  153; 
post,  p.  *63;  Green  v.  Creighton,  7  R.  I.  1. 

2  Glave  V.  Harding,  3  H.  &  Norm.  944. 

8  Wickham  v.  Hawker,  7  I\I.  &  W.  79  ;  post,  p.  *8. 
*  Shepp.  Touchst.  88. 

6  Bean  v.  Coleman,  44  N.  II.  544  ;  Lyman  v.  Arnold,  5  Mason,  198  ;  Maxwell 
V.  M'Atee,  9  B.  Mon.  20  ;  3  Kent,  419,  420. 


36  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cu.  I. 

does  not  form  the  ground  of  forfeiture  of  the  land,  nor  can 
the  easement  be  recovered  from  the  grantee  by  a  writ  of 
entry,  independent  of  the  land  to  which  it  is  incident.^ 

The  concurrence  as  well  of  the  owner  of  the  heritage 
which  it  is  wished  to  charge  with  the  servitude,  as  of  him 
in  favor  of  whose  heritage  it  is  desired  to  create  it,  is  neces- 
sary in  order  to  impose  a  servitude  upon  one  in  favor  of  the 
other.  And  he  only  can  thus  impose  a  servitude  who  is  of 
a  capacity  to  act  freely,  and  has  a  full  right  of  disposal  of 
the  estate  itself.  Neither  a  minor,  therefore,  nor  a  married 
woman,  while  under  the  control  of  her  husband,  can  impose 
a  servitude  upon  a  heritage.^  Nor  can  a  wife  by  her  admis- 
sions make  evidence  that  it  exists.^  Tlie  acquisition  of  ease- 
ments, moreover,  whether  with  or  without  the  will  of  the 
owner  of  the  servient  estate,  followed  the  analogy  of  the 
acquisition  of  corporeal  things.  It  required  in  the  first  place, 
the  owner's  voluntary  act  of  creating  or  imposing  the  servi- 
tude, and  in  the  next  place  something  answering  to  the 
"  traditio "  of  the  civil  law  of  a  corporeal  thing.  Servi- 
tudes, however,  might  be  acquired  without  the  consent  of 
the  owner  of  the  servient  land,  by  prescription.'^ 

2,  Though  an  easement,  like  a  right  of  way,  may  be  cre- 
ated by  grant  in  gross,  as  it  is  called,  or  attached  to 
[*29]  the  *person  of  the  grantee,  this  is  never  presumed 
when  it  can  fairly  be  construed  to  be  appurtenant  to 
some  other  estate ;  and  if  it  is  in  gross,  it  cannot  extend 
beyond  the  life  of  the  grantee.^  Nor  can  it  be  granted  over, 
being  attached  to  the  person  of  the  grantee  alone.  Whether 
the  thing  granted  be  an  easement  in  land  or  the  land  it- 
self, may  depend  upon   the  nature  and  use   of  the  thing 

1  Chapin  v.  Harris,  8  Allen,  594.     See  Watkins  v.  Teck,  13  N.  H.  375  ;  Gray's 
case,  5  Co.,  78. 

2  Lalaure,  Trait^  des  Servitudes  Reelles,  34 ;  post,  sect.  4,  pi.  69. 

3  M'Gregorr.  Wait,  10  Gray,  74. 
*  G liter.  Brae.  c.  15. 

<>  Case  of  Private  Koad,  1  Ashm.  417  ;  Acroyd  v.  Smith,  10  C.  B.  164;  Gar- 
rison V.  Rudd,  19  111.  558 ;  Woolr.  Ways,  10. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  87 

granted.  If  it  be  noii-contiuuous,  or  to  Ijc  used  only  occa- 
sionally, like  a  way,  the  grant  creates  only  an  incorporeal 
hereditament,  an  easement  and  not  the  land.^ 

So  an  easement  like  that,  for  instance,  of  drawing  water 
from  another's  well,  may  be  limited  to  certain  hours,  or  a 
right  of  way  may  be  confined  to  a  part  of  the  day,  or  to  a 
certain  place .^ 

3.  An  important  principle  is  to  be  remembered,  that  no 
one  can  grant  an  easement  out  of  land  in  favor  of  another, 
unless  he  has  the  entire  interest  in  the  soil.  If,  for  instance, 
there  are  tenants  in  common  of  land,  or  several  persons 
having  a  common  interest  in  an  estate,  neither  of  them 
can,  by  grant,  create  an  easement  therein  in  favor  of  a 
stranger.  Thus  where  a  number  of  persons  were  proprie- 
tors of  the  channel  of  a  river  as  trustees,  under  an  act  of 
Parliament,  and  a  major  part  of  the  sharers  in  the  profits 
of  the  river  granted  to  another  a  right  to  construct  and  use 
a  channel  through  the  bank  thereof,  the  court  say :  "  The 
concurrence  of  all  the  proprietors  of  the  river  is  necessary 
to  the  transfer  of  any  right  or  interest  in  it The  gran- 
tee, under  his  lease,  might  at  any  moment  be  ousted  by  any 
one  of  the  other  proprietors,  and  therefore  he  was  in  fact 
invested  with  no  definite,  permanent,  or   assignable   right 

under  it The  grant  is  merely  the  license  of  two  out 

of  many  co-proprietors  to  do  certain  acts,  and  enjoy  certain 
privileges,  and  that  cannot  be  considered  as  a  hereditament 
which  would  pass,  either  as  respects  its  privileges  or  its  liabil- 
ities, to  the  assignee  of  the  grantee Where  there  is  not 

an  entire  interest  in  the  soil  vested  in  the  grantor,  he  cannot 
grant  an  easement  arising  out  of  it  to  another."  ^ 

*4.   Notwithstanding  the   strong  language  of  the  [*oO] 
court  in  the  above  case,  it  perhaps  might  leave  some 
little  doubt  whether,  from  the  peculiarity  of  the  joint  owner- 

1  Jamaica  Pond  v.  Chandler,  9  Allen,  16-4. 

2  3- Kent,  Comm.  136. 

3  Poitmore  v.  Bunn,  3  Dowl.  &  U.  145. 


38  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

ship  of  the  property  in  that  case,  the  doctrine  would  apply 
with  full  force  in  the  common  case  of  tenants  in  common. 
And  the  court  in  Mendell  v.  Delano  ^  seem  disposed  to  waive 
the  question  whether  one  tenant  in  common  can  grant  a  right 
of  way  over  the  common  estate  to  a  stranger.  But  it  seems 
to  be  settled,  elsewhere,  that  he  cannot.^  And  this  is  con- 
sistent with  the  well-settled  doctrine  that  one  tenant  in  com- 
mon cannot  properly  convey  a  distinct  part  of  the  land  held 
in  common  to  a  stranger  by  metes  and  bounds.^  One  tenant 
in  common  has  no  right  to  flow  the  common  land  though  by 
a  dam  erected  upon  his  own  several  estate.^ 

And  in  the  Civil  Code  of  Louisiana  there  is  an  express 
declaration,  that  "  the  co-proprietor  of  an  undivided  estate 
cannot  impose  a  servitude  thereon  without  the  consent  of  his 
co-proprietor."^ 

But  it  seems  that  one  tenant  in  common  of  an  estate  may 
acquire  an  easement  in  respect  to  it  which  will  enure  in  favor 
of  his  co-tenants  as  well  as  himself.^ 

So  minors  through  their  guardians,  and  wives  through  their 
husbands,  may  acquire  easements  in  favor  of  their  estates.'^ 

5.  The  subject  of  acquiring  casements  by  implied  grant 
opens  a  wide  field  of  inquiry,  in  which  it  would  be  necessary 
to  refer  to  a  great  variety  of  decided  cases.  But,  for  the 
present,  a  general  statement  of  principles  only  will  be  at- 
tempted, which  apply  to  easements  as  interests  in 
[*31J  lands,  *leaving  their  application,  in  detail,  to  their 
connection  with  the  several  classes  into  which  ease- 
ments divide  themselves. 

1  Mendell  v.  Delano,  7  Mete.  176. 

-  Lalaurc,  Traite  des  Servitudes  Reelles,  38;  Collins  v.  Prentice,  15  Conn. 
423  ;  Marshall  v.  Trumbull,  28  Conn.  183 ;  Watkins  v.  Peck,  13  N.  H.  360-381  ; 
post,  sect.  4,  pi.  76. 

8  Bartlct  V.  Harlow,  12  Mass.  348  ;  Varnura  v.  Abbot,  12  Mass.  474. 

*  Great  Falls  v.  Worster,  15  N.  H.  460. 

6  La.  Civ.  Code,  Art.  734.  See  D.  8,  1,  2  ;  Ibid.  8,  2,  26  ;  3  TouUier,  Droit 
Civil  Francais,  418,  420. 

*'  3  Toullier,  Droit  Civil  Franrais,  424 ;  Lalaure,  Traite  des  Servitudes 
Kcelles,  40. 

7  3  Toullier,  Droit  Civil  Franrais,  423. 


Sect.  3.]  ACQUIRING   EASEiMENTS   BY   GRANT.  39 

The  broad  principle  upon  which  such  easements  are  cre- 
ated, or  pass,  by  implication,  by  the  grants  of  the  estates  to 
which  they  are  or  are  made  appurtenant,  rests  upon  the  fa- 
miliar maxim,  Cuicunque  aliqids  quid  concedit,  concedere  vi- 
detur  et  id,  sine  quo  res  ipsa  esse  non  potuit} 

But  nothing  except  what  is  properly  appurtenant  to  an  es- 
tate passes  with  it,  unless  forming  a  parcel  of  the  granted 
premises.  And  where,  therefore,  a  mill  was  granted  with  its 
appurtenances,  it  did  not  convey  the  soil  of  a  way  which  had 
been  immemorially  used  with  it,  because  land  cannot  be  ap- 
purtenant to  land.  But  it  did  pass  the  easement  of  a  way  as 
being  properly  an  appurtenant  to  the  mill.^ 

The  grant  or  reservation  of  a  "  way  "  or  "  road,"  without 
other  words  of  description,  carries  an  easement  only,  and  not 
the  fee  in  the  soil.^ 

Nor  does  the  grant  of  a  right  to  dig  a  canal  through  one's 
land,  carry  with  it  a  right  of  property  in  the  materials  exca- 
vated, unless  such  material  may  be  used  in  constructing  the 
canal.  How  far  it  may  belong  to  the  grantee  in  such  case  is 
not  decided  in  the  case  cited.* 

The  doctrine  is  a  general  one,  that  the  grant  of  a  thing 
carries  all  things  as  included,  without  which  the  thing  grant- 
ed cannot  be  enjoyed.  By  which  are  to  be  understood  things 
incident  and  directly  necessary  to  the  thing  granted.  The 
case  stated  by  Plowden,  as  illustrating  this,  is  the  grant  of 
one's  trees  standing  upon  his  own  land.  The  grantee  may, 
as  a  part  of  the  grant,  enter  upon  the  land  and  cut  them 
down  and  carry  them  away.  And  Twisden,  J.,  in  Pomfret 
V.  Ricroft,  says  :  "  When  the  use  of  a  thing  is  granted,  eve- 
ry thing  is  granted  by  which  the  grantee  may  have  and  enjoy 

1  Broom,  Max.  362  ;  Liford's  case,  11  Rep.  52  ;  Sliepp.  Touchst.  89  ;  Thomp- 
son V.  Banks,  43  N.  H.  .540. 

2  Leonard  v.  White,  7  Mass.  6.  See  Tabor  v.  Bradley,  18  N.  Y.  109  ;  post, 
pi.  25,  a. 

2  Jamaica  Pond  v.  Chandler,  sup.  ;  Graves  v.  Amoskeag  Co.,  44  N.  H  465 
Leavitt  v.  Towle,  8  N.  H.  97. 

*  Lyman  v.  Arnold,  5  Mason,  197. 


40  THE  LAW   OF   EASEMENTS  AND   SERVITUDES.  [Ch.  I. 

such  use,  as  if  a  man  gives  me  a  license  to  lay  pipes  in  his 
land  to  convey  water  to  my  cistern,  I  may  afterwards  enter 
and  dig  the  land  to  mend  the  pipes,  though  the  soil  belongs 
to  another  and  not  to  me."  ^ 

6.  It  is  upon  this  principle  that  ways  of  necessity  pass  with 
lands  when  granted,  and  although  ordinarily  treated  of  as 
a  class  distinct  from  those  created  by  grant,  they  are,  in  fact, 
acquired  in  that  way,  as  being  incident  to  the  principal  thing 
granted.^  And  the  same  principle  applies  to  cases  of  devises  of 
lands.  One  devisee,  if  necessary,  may  pass  over  land  devised 
to  another,  in  order  to  gain  access  to  that  which  has  been 
devised  to  himself.^ 

So  if  one  grant  a  parcel  of  land  which  is  so  connected 
with  another  parcel  belonging  to  him  that  he  can 
[*32]   have  *  access  to  the  latter  only  over  the  granted  par- 
cel, the  law  reserves  to  him  a  right  to  pass  over  the 
same,  as  a  way  of  necessity.     But  it  must  be  strictly  a  way  of 
necessity,  and  great  convenience  will  not  be  sufficient.* 

This  principle,  however,  is  subject  to  this  limitation,  that 
if  the  purposes  for  which  the  land  is  granted  are  inconsistent 
with  the  exercise  of  such  reserved  way,  no  such  right  of  way 
will  be  raised  by  implication  in  favor  of  the  grantor,  on  the 
idea  of  necessity.^ 

1  Plowd.  16  o;  Pomfret  v.  Kicroft,  1  Saund.  321;  HinchclifiFe  v.  Kinnoul,  5 
Bing.  N.  c.  1  ;  Darcy  v.  Askwith,  Hob.  234. 

2  BuUard  v.  Harrison,  4  Maule  &  S.  387  ;  Gayetty  v.  Bethiine,  14  Mass.  49; 
Lawton  v.  Rivers,  2  M'Cord,  445  ;  Turnbull  v.  Rivers,  3  Ibid.  131  ;  Cooper  v. 
Maupin,  6  Mo.  624  ;  3  Kent,  Comm.  423 ;  1  Wms.  Saund.  323  a ;  Atkins  v. 
Bordman,  2  Mete.  457;  Beaudely  ».  Brook,  Cro.  Jac.  189;  Staple  v.  Heydon, 
6  Mod.  1  ;  Nichols  v.  Luce,  24  Pick.  102 ;  Kimball  v.  Cocheco  R.  R.  Co.,  7  Post. 
448  ;  Williams  v.  Sanford,  7  Barb.  312. 

3  Pearson  v.  Spencer,  1  B.  &  S.  580 ;  s.  c,  3  B.  &  S.  761  ;  Tracy  v.  Ather- 
ton,  35  Verm.  53. 

*  Brigham  v.  Smith,  4  Gray,  297  ;  Collins  v.  Prentice,  15  Conn.  39  ;  Pierce 
V.  Sellech,  18  Conn.  321  ;  Lawton  v.  Rivers,  2  M'Cord,  445  ;  Cooper  v.  Maupin, 
6  Mo.  624  ;  Clark  v.  Cogge,  Cro.  Jac.  170;  Smith  v.  Kinard,  2  Hill,  So.  C.  642  ; 
Packer  v.  Welsted,  2  Sid.  39,  HI;  3  Kent,  Comm.  422  ;  Woolr.  Ways,  20 ; 
Pinnington  v.  Galland,  9  Exch.  1  ;  Dutton  v.  Tayler,  2  Lutw.  1487  ;  Chichester 
V.  Lcthbridgc,  Willcs,  71,  note;  Staple  v.  Heydon,  6  Mod.  1  ;  Leonard  v.  Leon- 
ard, 2  Allen,  543  ;  Ilowton  v.  Frearson,  8  T.  R.  50. 

6  Seeley  v.  Bishop,  19  Conn.  128. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  41 

So  where  one  owns  two  estates,  like  dwelling-houses,  and  a 
drain  or  way,  for  instance,  is  made  and  used  from  one  over 
or  through  the  other,  and  the  same  is  necessary  for  the  prop- 
er enjoyment  of  the  first,  and  the  owner  convey  the  first  to  a 
stranger,  he  thereby  grants  a  right  to  maintain  such  drain, 
or  to  use  such  way,  in  connection  with  tlie  granted  premises  ; 
which  is  but  a  single  illustration  of  a  pretty  widely  extended 
principle  applicable  to  cases  of  easements  passing  with  one  of 
two  parts  of  an  inheritance,  where  the  same  has  been  divided 
by  grant  or  partition.^ 

And  in  anticipation  of  what  will  be  said  in  another  connec- 
tion, it  may  be  remarked  that  the  principle  here  stated  does 
not  apply  to  easements  which  are  not  in  their  nature  contin- 
uous, unless  they  are  ways  of  necessity.^  Nor,  in  the  absence 
of  express  words,  does  it  extend  to  such  easements  as  are  sep- 
arable from  the  principal  thing  granted  or  reserved.  It  ap- 
plies to  cases  where  one  tenement  is  necessarily  dependent 
upon  another,  like  two  houses  dependent  on  each  other  for 
support.^ 

7.  The  law  upon  this  subject  is  fully  considered  and  ex- 
plained in  Nichols  v.  Luce,  above  cited,  and  may  be  thus 
summarily  stated.  All  easements  are,  in  fact,  gained  by 
grant,  the  only  difference  in  this  respect  being  the  mode  of 
proof.  Thus  prescription  presupposes  and  is  evidence  of  a 
previous  grant.  While  what  is  called  necessity  is  only  a  cir- 
cumstance resorted  to  in  order  to  show  and  explain 
the  *intention  of  the  parties,  in  raising  an  implica-  [*33] 
tion  of  a  grant.  The  deed  of  the  grantor  creates  the 
way,  when  it  is  one  of  necessity,  as  much  as  it  does  where 
it  creates  it  by  express  grant.  One  is  by  implication,  the 
other  is  a  grant  in  terms.^ 

1  Hills  V.  Miller,  3  Paige,  254 ;  2  Washb.  Real.  Prop.  32  ;  Alston  v.  Grant,  3 
Ellis  &  B.  128  ;  Thayer  v.  Payne,  2  Gush.  327 ;  Pyer  v.  Garter,  1  Hurlst.  &  N.  916. 

2  Polden  V.  Bastard,  4  B.  &  S.  257  ;  Pearson  v.  Spencer,  1  B.  &  S.  580;  s.  c, 
3  B.  &  S.  761  ;  Dodd  v.  Burchell,  1  H.  &  Golt.  113. 

3  Suffield  V.  Brown,  10  Jur.  N.  S.  HI. 

*  Nichols  V.  Luce,  24  Pick.  102;  Collins  v.  Prentice,  15  Gonn.  39;  Atkins  v. 
Bordman,  2  Mete.  457.  • 


42'  THE  LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

8.  On  the  other  hand,  easements  often  pass  by  implica- 
tion, from  the  manner  in  which  the  grantor  of  the  premises 
may  have  used  the  same,  if  reference  is  made  to  such  use  in 
his  deed.  Thus,  if  having  two  parcels,  he  shall  have  used  a 
way  over  one  in  a  definite  and  accustomed  manner,  and  shall 
grant  the  parcel  witli  which  such  way  has  been  used  to  a 
third  person,  with  "  all  ways,"  it  would  carry  a  right  to  use 
this  way  across  the  grantor's  other  land.  The  use,  when 
proved,  defines  what  "  way"  it  is  that  was  intended  by  the 
deed.i 

It  may  be  remarked,  however,  that  the  same  rule  of  con- 
struction is  applied  in  the  case  of  the  grant  of  a  house  "  with 
the  lights,"  as  of  land  "  with  the  ways."  One  who  should 
sell  his  house  in  that  form,  would  not  have  a  right  to  ob- 
scure the  windows  by  building  on  his  adjacent  vacant  land. 
Whereas,  if  he  had  such  a  lot,  and  conveyed  it  before  he  did 
his  house,  without  reserving  the  right  of  light  to  the  win- 
dows to  the  same,  the  vendee  might  build  upon  such  lot, 
though  he  thereby  wholly  obscured  the  light  of  these  win- 
dows.2 

9.  A  few  cases  may  be  referred  to  by  way  of  illus- 
[*34]  tration  *  of  what  may  pass  by  implication  by  a  grant, 
as  part  of,  or  appurtenant  or  incident  to,  the  principal 
thing  granted.  Thus,  the  grant  of  a  mill  carries  the  head  of 
water  by  which  it  is  carried  ;  ^  so  it  carries  a  right  to  flow  the 
grantor's  land,*  and  the  whole  right  of  water  which  had  been 
previously  used  with  it  by  the  grantor  ;^  so  it  carries  the  flow 
of  the  water  in  the  race-way .^  And  if  it  draws  its  principal 
supply  of  water  from  a  reservoir  upon  the  same  stream,  at  a 

1  Staple  V.  Hcydon,  6  Mod.  1  ;  Atkins  v.  Bordman,  2  Mete.  457  ;  Kooystra  v. 
Lucas,  5  Barncw.  &  Aid.  830;  Com.  Dig.  Chimin,  D.  3 ;  Plant  v.  James,  5  Bar- 
new.  &  Ad.  791  ;  Oakley  v.  Adamson,  8  Bing.  356;  Hinchclitfe  v.  Kinnoul,  5 
Bing.  N.  c  1  ;  Gayetty  v.  Bcthune,  14  Mass.  49. 

2  Tenant  v.  Goldwin,  2  Ld.  Raym.  1089. 
8  Rackley  v.  Sprague,  17  Mc.  281. 

*  Ilatliorn  v.  Stinson,  10  Me.  224. 

6  Strieklcr  v.  Todd,  10  Serg.  &  R.  63;  Vickcrie  v.  BuswcU,  13  Me.  283. 

<*  Wetmore  v.  White,  2  Caincs,  Ciis.  87. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  43 

distance  above  the  mill,  a  conveyance  of  the  mill  carries  also 
the  upper  dam  and  reservoir  as  incidents,  inasmuch  as  the 
grant  of  the  mill  would  be  practically  inoperative  without 
these. ^  So  when  one  granted  to  another  a  right  to  ITave  the 
washings  of  ore  from  his  ore  bed  pass  into  the  stream  which 
ran  through  the  grantor's  meadow  and  be  deposited  upon  the 
meadow,  and  the  effect  in  time  was  to  raise  the  meadow  so 
much  that  the  dirt  washed  from  the  ore  passed  off  the  meadow 
on  to  an  adjoining  pasture  of  the  grantor,  it  was  held  to  come 
within  the  incidents  of  the  grant,  and  therefore  no  violation 
of  the  grantor's  right,  although  the  grant  specified  only  the 
meadow.^  So  the  devise  of  a  mill  carries  buildings,  land, 
and  privileges  necessary  to  its  use.^  So  the  exception  from 
the  grant  of  a  larger  estate,  of  ^'  the  brick  factory,"  was  held 
to  include  with  such  factory  the  land  on  which  it  stood,  and 
the  water  privilege  belonging  to  the  same.^  The  grant  of 
half  a  dam  conveys  with  it  half  the  water-power ;  ^  so  the 
reservation  of  a  "  mill-site  "  embraces  not  only  the  land  of 
such  site,  but  also  a  right  of  flowage  of  a  pond  for  the  use  of 
the  mill.^  So,  in  several  cases,  the  grant  of  a  house  carries 
with  it  the  right  to  enjoy  the  unobstructed  use  of  light  there- 
with.'' 

10.  But  the  grant  of  a  mill-site,  with  the  right  to  erect 
and  maintain  a  mill  thereon,  is  a  grant  of  land,  and  not  an 
easement  in  land.^  And  the  grant  of  "  a  mill  "  would  not 
only  pass  the  land  on  which  it  stands,  but  it  may  embrace 
the  free  use  of  the  head  of  water  existing  at  the  time  of  the 
grant,  and  the  rights  of  way  and  all  other  easements  which 

1  Perrin  i'.  Garfield,  37  Verm.  312.     See  post,  p.  *42,  and  Brace  v.  Yale,  there 
cited. 

2  Bushnell  v.  Proprietors,  &c.,  31  Conn.  150. 

3  Whitney  v.  OIney,  3  Mason,  280. 
*  Allen  V.  Scott,  21  Pick.  2.5. 

6  Runnels  v.  Bullen,  2  N.  H.  532. 

6  Oakley  v.  Stanley,  5  Wend.  523  ;  Lampman  v.  Milks,  21  N.  Y.  505 ;  Stack- 
pole  V.  Curtis,  32  ]Me.  383. 

^  Swansborough  v.  Coventry,  9  Bing.  305  ;  Durel  v.  Boisblanc,  1  La.  Ann.  407. 
8  Farrar  v.  Cooper,  34  Me.  394. 


44  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

have  been  used  with  the  mill,  and  which  are  necessary  to  the 
enjoyment  of  it.  And  it  was  held  that  the  use  of  a  mill- 
yard,  so  long  as  the  mill  continued  to  be  occupied, 
[*35]  'passed  as  an  easement  thereto  by  the  assignment  of 
the  mill.i  So  the  devise  of  a  mill  was  held  to  carry 
the  appurtenances  used  by  the  testator  in  his  lifetime,  such 
as  the  dam,  water,  and  race,  and  the  land  before  the  mill 
used  for  loading  and  unloading  grain,  &c.,  with  teams.^ 

The  grant  or  reservation  of  a  "  mill-privilege  "  or  a  "  mill- 
site  "  is  understood  to  carry  the  land  itself,  and  not  a  mere 
easement  in  the  land.  But  with  it  would  pass  the  right  to 
the  use  of  the  water,  with  the  use  of  the  appendages  belong- 
ing to  the  mill ;  and  it  was  left  to  the  jury  to  determine  the 
extent  of  the  mill-yard,  the  jjse  of  which  passed  as  incident 
to  the  mill  standing  on  the  privilege.^ 

In  the  grant  of  a  parcel  of  land,  part  of  a  larger  estate,  the 
grantor  excepted  out  of  his  grant  what  was  then  a  tan-yard, 
and  reserved  "  a  well "  upon  the  granted  premises,  "  and 
waterworks  laid  down  for  the  purpose  of  supplying  the  tan- 
nery aforesaid  with  water."  It  was  held  to  be  a  general 
reservation  of  an  easement  to  draw  water  thereby  for  any 
purposes,  and  not  limited  to  the  use  of  the  tan-yard.^ 

The  devise  of  a  mill-privilege  with  privileges  and  appur- 
tenances, passes  all  the  privileges  and  easements  which  had 
before  become  attached  to  the  same,  such  as  the  right  to 
build  and  maintain  a  dam,  erect  mills,  all  rights  of  flowage 
of  lands  of  the  lessor  or  others,  all  rights  of  ways,  of  laying 
logs  or  lumber,  and  of  mill-yard,  whether  the  same  may  have 
been  acquired  by  grant  or  prescription.^ 

1  Blake  v.  Clark,  7  Me.  436 ;  Atkins  v.  Bordman,  2  Mete.  463. 

2  Blain's  Lessee  v.  Chambers,  1  Serg.  &  TJ.  169.  See  also  Gibson  v.  Brock- 
way,  8  N.  IL  465;  Maddox  v.  Goddard,  15  Md.  218;  Swartz  v.  Swurtz,  4  Penn. 
St.  353 ;  M'Tavish  v,  Carroll,  7  Md.  352. 

3  Moore  v.  Fletcher,  16  Me.  63  ;  Crosby  v.  Bradbury,  20  Me.  61  ;  Jackson  v. 
Vcrmilyea,  6  Cow.  677. 

*  Borst  V.  Empie,  1  Seld.  40. 

^  Thompson  v.  Banks,  43  N.  IL  540;  Dunklec  v.  Wilton  R.  R.,  24  N.  H. 
495  ;  Seavey  v.  Jones,  43  N.  II.  441. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  45 

But  where  a  tract  of  land  was  granted  "  with  A.  D.'s  mill- 
seat  excepted,"  it  was  held  to  be  an  exception  of  a  right  to 
flow  a  pond  on  the  land  for  the  mill,  and  not  of  the  land  it- 
self on  which  the  pond  was  raised.^ 

11.  And  the  grant  of  land  bounding  on  or  near  a  pond  or 
stream  of  water,  reserving  to  the  grantor  the  mill  and  water- 
privilege  connected  with  such  pond  or  stream,  is  a  reserva- 
tion of  the  right  to  flow  the  land  granted,  so  far  as  is  neces- 
sary or  convenient,  or  so  far  as  it  has  been  usual  to  flow  it 
for  that  purpose.^  But  a  different  rule  has  at  times  been  in- 
sisted on,  in  respect  to  a  right  to  flow  lands  being  raised  by 
implication,  where  the  mill  is  the  subject  of  grant,  from  that 
which  is  applied  in  case  of  a  reservation  of  a  mill.  If  the 
mill-owner  sells  his  mill  and  jdam,  but  retains  the  lands 
which  had  been  flowed  thereby,  he  conveys,  as  an  essential 
part  of  the  grant,  the  right  of  flowage  of  these  lands, 
so  far  *as  the  same  is  necessary.  But  if  he  sell  the  [*36] 
lands,  retaining  the  mill,  it  has  been  held  that  he 
would  not  have  a  right  to  flow  the  land,  unless  he  expressly 
reserved  the  right  so  to  do.^ 

But  the  above  doctrine  is  controverted  as  to  the  distinc- 
tion between  a  grant  and  reservation  ;  and  it  was  held,  that, 
if  one  having  land,  on  which  are  a  mill,  a  mill-dam,  and  pond 
of  water,  sell  the  land  on  which  the  dam  stands,  and  the 
head  of  water  is  raised,  without  any  express  reservation,  the 
purchaser  takes  it  subject  to  the  easement  of  these,  as  inci- 
dent to  the  mill  retained  by  him.^ 

So  where  the  owner  of  a  spring  lot  and  of  a  paper-mill  on 
another  tract,  by  an    artificial    arrangement   conveyed  the 

1  Everett  v.  Dockery,  7  Jones,  No.  C.  390;  Whitehead  v.  Garris,  3  Ibid.  171. 

2  Pettee  v.  Hawes,  13  Pick.  323. 

3  Preble  v.  Reed,  17  Me.  169;  Hathorn  v.  Stinson,  10  Me.  224;  Rackley  w. 
Sprague,  17  Me.  281  ;  Burr  v.  Mills,  21  Wend.  290  ;  M'Tavish  v.  Carroll,  7  Md. 
352  ;  Johnson  v.  Jordan,  2  Mete.  234  ;  Carbrey  v.  Willis,  7  Allen,  370 ;  Sufficld 
V.  Brown,  10  Jur.  N.  S.  Ill ;  Tenant  v.  Goldwin,  2  Ld.  Raym.  1093;  White  v. 
Bass,  7  H.  &  Norm.  731. 

*  Seibert  v.  Levan,  8  Penn.  St.  383.  See  also  Harwood  t;.  Benton,  32  Vt.  724. 
Nicholas  v.  Chamberlain,  Cro.  Jur.  121. 


46  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

water  from  the  spring  to  the  mill  for  the  use  of  the  mill,  in 
the  manufacture  of  paper,  and  sold  the  spring  lot  by  itself, 
the  purchaser  took  it  subject  to  the  burden  of  this  easement 
of  water  for  the  mill,  although  the  latter  was  retained  by  the 
grantor. 1 

12.  But  whether  any  and  what  privileges  pass  by  a  grant 
of  a  thing,  as  well  as  the  measure  or  limits  of  what  is 
granted,  often  depends  upon  the  circumstances  and  condi- 
tion of  the  property,  and  the  language  of  the  grant  construed 
in  the  light  of  these  circumstances.  One  general  test  is,  how 
far  the  incidents  claimed  are  necessary  to  the  reasonable  en- 
joyment of  what  is  expressly  granted. 

Thus  where  land  was  granted  across  which  a  public  high- 
way had  been  laid  out,  and  was  in  use,  and  the  owner  con- 
veyed it  with  covenants,  and  in  his  deed  reserved  or  exccpte<J 
the  roads  across  the  premises,  it  was  held  not  to  be  a  reser- 
vation or  exception  of  the  land  itself  included  in  this  way, 
but  an  exception  of  the  easement  from  the  covenants  in  his 
deed.2 

So  a  grant  of  land  running  &c.  to  a  passage-way,  which 
was  reserved  to  the  grantor  to  be  used  as  such,  and  to  be 
used  by  the  grantee  and  his  assigns  in  common  with  the 
grantor  and  others  claiming  under  him,  was  held  to  be  that 
of  an  easement  in  and  not  the  soil  of  the  way.  But  its  use 
was  limited  to  the  land  granted,  and  did  not  extend  to  any 
acquired  afterwards.^ 

And  where  the  grant  was  of  a  right  of  way  "  over  my  land 
where  it  is  necessary,"  it  was  held  to  extend  only  to  such 
lands  as  the  grantee  owned  when  the  grant  was  made.* 

13.  In  the  first  place,  in  order  to  liave  a  right  of  easement 
in  or  over  one  piece  of  land  pass  by  the  grant  of  another  par- 
cel, it  must  be  an  existing  easement,  actually  appurtenant 
by  use  and  enjoyment,  and  by  having  been  exercised  with 

1  Seymour  v.  Lewis,  l.'J  N.  J.  439  ;  post,  sect.  3,  pi.  25  &  25  a. 

2  Lcavitt  V.  Towlc,  8  N.  H.  96. 

'     3  Stearns  v.  Mullen,  4  Gray,  155. 
*  Smith  V.  Porter,  10  Gray,  67. 


Sect.  3.]  ACQUIRING   EASEMENTS  BY   GRANT.  47 

the  occupation  of  the  latter  parcel.  It  is  not  enough  that 
the  grantor,  when  he  made  his  deed,  had  a  riglit,  in  the  na- 
ture of  an  incorporeal  hereditament,  to  an  easement  in  the 
other  land  which  he  had  never  exercised  or  applied.  Thus 
A  sold  a  parcel  of  land  through  which  a  stream  of  water 
flowed  to  B,  and  reserved  the  streams  and  soil  under  the 
same,  with  a  right  to  erect  dams  and  mills,  and  to  overflow 
the  land  for  the  use  of  the  mills.  B  sold  a  part  of  these 
lands  to  C,  sultject  to  these  reservations.  C,  by  verbal 
permission  and  agreement  of  A,  erected  a  dam  *on  [*37] 
his  land,  thereby  overflowing  a  part  of  B's  land.  It 
was  held,  that,  until  A  had  exercised  the  reserved  right  to 
flow,  the  reservation  was  inoperative,  since  it  would  not  until 
then  be  ascertained  what  lands  were  thereby  to  be  flowed, 
the  reservation  being  of  a  right  only  to  use  these  lands  for 
a  specific  purpose,  while  the  direct  interest  in  the  soil  was 
in  the  grantee ;  and  that  this  right,  so  reserved,  was  an  in- 
corporeal hereditament  which  could  be  granted  by  deed  only, 
and  therefore  the  verbal  license  of  A  to  C  to  flow  B's  land 
was  of  no  avail.^ 

So  where  one  made  a  lease  in  fee  of  a  farm,  "  excepting 
seven  acres,  and  saving  and  reserving  to  the  lessor  all  water- 
covirses  suitable  for  the  erection  of  mills,  with  the  right  of 
erecting  mills,  with  three  acres  of  land  adjoining  thereto, 
and  also  saving  and  reserving  the  right  to  erect  dams  and 
cut  ditches  for  the  use  of  such  water-works."  The  lessor 
leased  these  seven  acres  in  fee  to  S.,  who  erected  a  mill 
thereon,  and  flowed  a  part  of  the  three  acres.  But  it  was 
held,  that,  though  by  the  conveyance  of  the  seven  acres  he 
acquired  a  right  in  the  same  manner  as  his  lessor  had  to  erect 
mills  thereon,  he  did  not  thereby  acquire  a  right  to  flow  the 
three  acres,  although  his  lessor  had  this,  because  it  was  not 
appurtenant  or  annexed  to  the  parcel  of  seven  acres.  It  was 
an  incorporeal  hereditament  in  the  lessor,  which  would  only 
pass  by  express  grant ;  nor  did  it  change  the  rights  of  the 

1  Thompson  v.  Gregory,  4  Johns.  81. 


48  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Cn.  I. 

parties,  that  the  lessor,  after  the  commencement  of  the  action, 
indorsed  on  the  lease  that  it  was  the  intention  of  the  same  to 
convey  the  right  to  flow  the  three  acres. ^ 

The  case  of  Morgan  v.  Mason  may  be  referred  to  as  an 
illustration  of  rendering  an  easement  in  one  parcel  of  land 
appurtenant  to  another,  so  as  afterwards  to  pass  with  the  lat- 
ter.    J.  M.  bought  of  Polluck  fifteen  acres  of  land  lying  upon 

one  side  of  a  stream,  in  1834.  At  that  time,  May 
[*38]  *owned  land  above  this  parcel  upon  both  sides  of  the 

stream,  and  upon  the  side  of  the  stream  opposite  to  the 
fifteen  acres.  In  1837  he  conveyed  to  J.  M.  one  acre  of  the 
land  opposite  the  fifteen  acres,  and  extending  as  far  up  the 
stream  as  that  did,  and  by  the  same  deed  conveyed  to  J.  M. 
a  right  to  build  a  dam  across  the  stream  at  the  upper  line  of 
the  fifteen-acre  and  one-acre  lots,  far  enough  and  high  enough 
to  raise  the  water  in  the  stream  to  a  certain  height,  and  to  go 
upon  May's  land,  at  all  times,  to  repair  it.  The  dam  was 
erected,  and  a  race  made  •upon  the  fifteen-acre  lot,  by  which 
the  water  of  the  pond  was  conducted  and  discharged  into  the 
stream  below  the  one-acre  lot,  and  upon  this  race  within  the 
fifteen-acre  lot  a  mill  was  standing  in  1837,  which  was  operat- 
ed by  the  water  of  the  same,  and  continued  to  be  up  to  1845. 
At  that  time  the  fifteen-acre  lot  was  sold  on  execution  against 
J.  M.  by  metes  and  bounds,  with  the  privileges  and  appurte- 
nances thereto  belonging.  All  J.  M.'s  other  lands  were  sold 
under  a  mortgage  to  another  creditor,  and  the  question  was, 
whether  this  water-right  upon  another  tract  of  land,  and  ac- 
quired at  a  different  point  of  time,  had  become  so  appurte- 
nant to  the  fifteen-acre  lot  as  to  pass  with  it,  without  being 
expressly  named.  And  it  was  held  that  it  did,  being  neces- 
sary to  the  enjoyment  of  the  mill  standing  on  the  fifteen- 
acre  lot,  and  used  with  it ;  and  that  it  passed  as  incident 
to  it,  without  requiring  that  it  should  be  mentioned  in  the 
deed.^ 

1  Russell  V.  Scott,  9  Cow.  279. 

2  Morgan  ;;.  Mason,  20  Ohio,  401,  414.    See  Underwood  v.  Carney,  1  Cush.  285. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  49 

14.  Appurtenant,  as  applied  to  easements,  which  pass  by 
grant  of  the  principal  thing,  is  confined  "  to  an  old  i3xisting 
right."  It  is  not  enough  that  the  same  man  may  own  one 
piece  of  land,  and  a  right  to  use  another  piece  of  land,  in 
a  qualified  manner,  in  connection  with  it.  If  he  conveys 
the  first  parcel  independent  of  the  right  in  the  second,  it 
passes  no  claim  to  his  grantee  beyond  what  is  expressly 
granted,  unless  he  has  so  united  them,  by  a  practical 
*application  of  the  one  for  the  benefit  of  the  other,  [*39] 
as  to  have  given  thereby  a  value  and  advantage  to  the 
principal  estate  which  is  presumed  to  enter  into  the  consider- 
ation which  he  receives  upon  conveying  the  same.  It  is  for 
this  reason,  among  others,  that  if  one  owns  two  parcels  of 
land,  over  one  of  which  he  has  a  convenient  way  to  the  other, 
which  he  uses,  it  is  not  supposed  he  intends  to  enhance  the 
value  of  the  one  at  the  expense  of  the  other ;  and  when  he 
sells  either  of  these  parcels,  it  is  not  presumed  that  he  at- 
taches to  such  parcel  a  burden  or  privilege  in  respect  to  the 
other,  unless  he  expressly  so  declares  in  his  deed.  Such 
way  would  not  pass  as  appurtenant,  unless  made  so  expressly 
by  the  deed,  although  the  estate  "  with  its  appurtenances  " 
is  granted.^ 

15.  But  if,  in  a  case  like  that  supposed,  the  owner  of  two 
parcels  of  land,  over  one  of  which  there  was  a  defined  and 
ascertained  way  used  by  him  in  connection  with  the  other 
parcel,  were  to  convey  the  latter  parcel,  with  "  the  ways,  or 
all  the  ways,  now  used  "  therewith,  such  way  would  become 
appurtenant  to  the  parcel  by  the  act  of  the  owner,  evidenced 
by  the  language  of  his  deed.^ 

So  if  one  own  White  Acre  and  Black  Acre,  and  uses  a  way 
from  White  Acre  over  Black  Acre  to  a  mill,  a  river,  or  the 

1  Barlow  v.  Rhodes,  1  Crompt.  &  M.  439  ;  Whalley  v.  Tompson,  1  Bos.  & 
P.  371  ;  Grant  v.  Chase,  17  Mass.  443.  Baijley,  J.,  in  Barlow  v.  Rhodes,  says  of 
Morris  v.  Edgington,  3  Taunt.  24  :  "  I  consider  that  merely  as  a  case  of  a  way  of 
necessity."     Plant  v.  James,  b  B.irnew.  &  Ad.  791. 

2  Whalley  !•.  Tompson,  1  Bos.  &  P.  371  ;  Barlow  v.  Rhodes,  1  Crompt.  &  M. 
430  ;  Kooystra  v.  Lucas,  5  Barnew.  &  Aid.  830  ;  Com.  Dig.  Chimin,  D.  3. 

4 


50  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [C«.  1. 

I 

like,  and  conveys  White  Acre  to  a  stranger,  "  with  all  ways," 
it  will  pass  a  right  of  way  with  it  over  Black  Acre  to  the  mill, 

16.  But  though,  where  there  is  an  existing  easement,  like 
a  way  belonging  to  an  estate,  it  will  pass  with  the  estate,  if 
granted  "  with  the  privileges  and  appurtenances,"  or,  by 
later  cases,  without  adding  these  words,  the  use  of  these 
words  will  not  create  a  new  easement,  nor  give  a 
[*40]  right  to  *use  a  way  which  has  been  used  with  one 
part  of  an  estate  over  another  part,  while  both  parts 
belonged  to  the  same  owner.  But  if  the  words  in  the  grant 
of  the  principal  estate  be  "  with  all  ways  therewith  used,  or 
heretofore  used,"  the  ways  actually  in  use  at  the  time  of 
the  conveyance  would  pass.^  And  in  James  v.  Plant,^  the 
court  held  that  "  appurtenances  "  in  the  habendum  of  the 
deed  under  consideration  was  not  confined  to  that  which 
is,  in  legal  strictness,  an  appurtenant,  such  as  an  ease- 
ment, the  enjoyment  whereof  has  never  been  interrupted 
by  unity  of  possession  or  extinguished  by  unity  j)f  seisin, 
but  that  it  would  let  in  and  comprehend  a  right  of  way 
which  had  been  usually  held,  used,  and  occupied  or  en- 
joyed with  the  principal  estate  conveyed.  But  the  ground 
upon  which  this  was  so  held  was,  that  "  ways,  paths,  and 
passages"  had  been  mentioned  in  the  deed  among  the  pre- 
mises granted.  Otherwise  the  word  "appurtenances"  in  the 
habendum  would  only  pass  a  way  legally  incident  to  the  en- 
joyment of  the  property."* 
'Thus  it  is  said  by  Crompton,  J.,  in  respect  to  the  claim  of 
an  easement  of  a  pump  upon  one  estate  in  favor  of  another, 
both  of  which  estates  were  claimed  under  the  same  devisor : 
"  This  is  not  a  continuous  easement,  nor  an  easement  belong- 
ing to  the  cottage,  but  a  mere  enjoyment  for  two  years  by 

1  Staple  V.  Ileydon,  6  Mod.  1. 

2  Gayctty  v.  Bcthuue,  14  Mass.  49  ;  Grant  v.  Chase,  17  Mass.  443;  ante,  sect. 
l,pl.  11. 

8  4  A.  &  Ellis,  749. 

<  Woitliiiigton  V.  Gimson,  2  E.  &  Ellis,  624. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  61 

the  tenant,  of  tlie  privilege  of  using  the  pump.  If  this 
had  been  an  old  easement  attached  to  tlie  cottage,  it  would 
pass  hy  the  words  "  appertaining  and  belonging."  But  to 
create  a  new  easement  which  did  not  exist  before,  the  will 
must  have  devised  the  cottage  with  the  pump  therewith 
enjoyed.^ 

17.  So  where,  upon  partition  made  of  an  estate  by  mutual 
deeds  of  release,  upon  one  part  of  the  estate  there  was  a  mill 
which  was  assigned  to  one  cotenant,  and  a  part  of  the  land 
which  was  flowed  by  the  mill  was  assigned  to  another,  and 
in  the  deed  the  expression  was  contained,  "  the  brook  to  re- 
main for  the  mills  as  heretofore,"  it  was  held  that  the  mill- 
owner  had  a  right  to  flow  the  land  of  the  other,  and  that  the 
extent  to  which  this  might  be  done  was  to  the  height  to 
which  the  dam  of  the  mill,  in  its  original  state,  was  designed 
and  was  of  a  capacity  to  raise  it,  althougli  when  the  deed 
was  made  the  dam  had  become  depressed  in  the  centre, 
and  incapable,  in  that  state,  of  flowing  water  to  its  original 
height. 2  ' 

18.  Where  one  conveyed  land  with  a  water-privilege,  by 
metes  and  bounds,  on  which  one  end  of  a  dam  across  the 
stream  rested,  and  reserved  to  himself  the  privilege  of  draw- 
ing so  much  water  from  the  pond  for  fulling  so  much  cloth, 
but  there  was  no  existing  mill,  the  grantor  insisted  that,  by 
implication,  he  had  a  right  to  erect  such  mill  upon  the 
land,  in  order  to  enjoy  the  reserved  right  of  water-power. 
But  it  appearing  that  there  was  other  land  in  the  neighbor- 
hood which  he  could  obtain  suitable  for  erecting  such  mill, 
which  might  be  operated  by  a  canal  to  be  cut  across  the 
granted  premises,  it  was  held  that  the  right  to  erect  the  mill 
upon  the  premises,  not  being  a  necessary  one  in  order  to  en- 
joy the  reservation,  did  not  pass  thereby.^ 

19.  Upon  a  like  principle,  where  one  made  a  grant  or 

1  Poldcn  V.  Bastard,  4  B.  &  Smith,  264. 

2  Vickcrie  v.  Buswell,  13  Me.  289. 

3  Cocheco  Mg.  Co.  v.  Whittier,  10  N.  H.  305. 


52  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cii.  I. 

[*41]  *lease  of  a  tan-yard,  with  a  right  to  take  sufficient 
water  from  a  stream  upon  the  grantor's  land  for  the 
use  of  the  tan-yard  and  to  carry  a  bark-mill,  it  did  not  give 
the  grantor  a  right  to  foul  the  water  by  discharging  the  con- 
tents of  the  tan-yard  into  the  water  thus  used.  It  not  being 
necessary  to  its  enjoyment,  the  right  to  do  this  did  not  pass 
with  the  principal  thing  granted,  however  convenient  it 
might  be.^ 

20.  The  case  of  Hull  v.  Fuller  may  serve  to  show  how  far 
courts  are  sometimes  obliged  to  refer  to  the  state  and  condi- 
tion of  the  premises,  as  well  as  the  purpose  of  the  grant,  in 
order  to  fix  and  define  the  limits  of  a  grant  of  an  easement. 
The  terms  of  the  grant,  in  that  case,  were  of  a  definite  par- 
cel of  land,  "  and  the  whole  of  a  mill-pond  which  may  be 
raised  by  a  dam  on  said  falls  to  a  road,"  &c.  As  this  neither 
fixed  the  dimensions  of  the  pond,  nor  the  height  of  the  dam, 
the  grant  was  held  to  be  of  a  right  to  erect  such  a  dam  as 
would  afford  a  reasonable  use  of  the  mill-privilege,  and  when 
a  dam  should  be  built,  and  a  pond  thereby  should  be  raised, 
such  as  would  effect  that  purpose,  the  boundaries  of  the 
grant  would  thereby  become  fixed  and  ascertained.  By  that 
grant  the  purchaser  had  a  right  to  build  such  a  dam  as 
could  be  constructed  at  the  falls,  and  of  such  a  height  as 
would  well  answer  the  purposes  of  mills  contemplated  to  be 
built  there.2 

21.  While  it  is  true  that  the  grant  of  a  principal  thing 
carries  whatever  is  necessary  to  its  enjoyment,  this  is  limited 
by  what  the  grantor  had,  at  the  time,  the  power  to  convey.^ 
So  it  might  be  limited  by  the  effect  which  the  construction 
to  be  given  might  have  upon  other  interests  and  estates  con- 
nected with  the  one  granted.     Thus,  though  if  one 

[*42]  had  a  single  saw-mill  for  instance,  upon  a  stream,  *and 
were  to  convey  the  same  by  deed,  it  would  carry,  by 

1  Howell  (;.  M'Coy,  3  Eawle,  256. 

2  Hull  V.  Fuller,  4  Vt.  199. 

3  Tourtellot  v.  Phelps,  4  Gray,  370  ;  Lampnian  i-.  IMilks,  21  N.  Y.  505;  United 
States  V.  Appleton,  I  Sumn.  492. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  53 

implication,  the  dam  and  water-privilege  belonging  to  the 
same  ;  yet  if  he  owned  several  mills  standing  upon  the  same 
privilege,  and  were  to  convey  one  of  them  by  the  same  dis- 
tinctive term  of  "  saw-mill,"  "  grist-mill,"  or  the  like,  it 
would  only  pass  the  particular  mill  thus  designated,  and 
sufficient  water  only  to  carry  it.  The  law  would  not  extend 
the  constructive  grant  to  the  destruction  of  the  other  mills 
standing  on  the  same  privilege.^ 

In  one  case  there  were  two  mills  upon  a  stream,  and  a 
reservoir  above  them  both,  the  water  from  which  came,  suc- 
cessively, to  these  mills.  The  owner  of  them  sold  the  lower 
mill,  conveying  it  by  metes  and  bounds,  without  mentioning 
the  reservoir.  The  other  mill  and  reservoir  afterwards  came 
into  the  plaintiff's  hands,  and  upon  the  owner  of  the  lower 
mill  undertaking  to  exercise  the  right  to  draw  water  from 
the  reservoir,  it  was  held  that  he  acquired  no  right,  by  im- 
plication, to  do  this  against  the  consent  of  the  owner  of  the 
upper  works,  although  it  so  happened  that  between  the  up- 
per and  lower  mills  there  was  no  place  where  the  owner  of 
the  latter  could  erect  a  dam,  and  raise  a  head  of  water  by  a 
pond.2 

22.  Where  an  easement,  like  an  artificial  drain,  for  in- 
stance, has  been  created  and  granted  for  a  particular  use 
and  purpose,  it  cannot  be  changed  by  the  grantee  to  another 
though  like  use,  nor  can  the  grantee  increase  the  amount  or 
extent  of  such  use  beyond  what  was  originally  intended  and 
embraced  in  the  grant.  Thus,  A  granted  to  B  a  right  to 
construct  and  maintain  an  artificial  trench  across  A's  land, 
to  drain  the  water  from  a  certain  cleared  parcel  of  land  by 
ditches  made  thereon  discharging  into  this  trench.  The 
grantee  afterwards  drained  the  specific  parcel  by  ditches  run- 
ning in  a  direction  other  than  to  this  trench,  but  cleared  an- 

1  Crittenden  v.  Field,  8  Gray,  621  ;  Vickerie  v.  Bus\yell,  1.3  Me.  289  ;  Stack- 
pole  V.  Curtis,  32  Me.  383. 

2  Brace  v.  Yale,  4  Allen,  393  ;  2  Wash.  R.  P.  664.    See  ante,  p.  *34,  for  distinc- 
tion between  this  and  the  case  of  Pcrrin  v.  Garfield  there  cited. 


54  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

other  parcel,  and  drained  the  water  from  that  by  ditches  run- 
ning into  this  trench.  It  was  held  that  he  liad  no  right, 
under  such  grant,  to  increase  the  quantity  of  water  intended 
to  be  thereby  discharged  through  the  trench,  and  that  he  had 
no  right  to  discharge  water  coming  from  other  sources  than 
that  specified  in  the  grant,  although  it  might  not  exceed  in 
quantity  that  which  was  contemplated  to  flow  through  the 
trench,  even  though,  while  doing  it,  the  grantee  forbore  to 
use  it  for  discharging  the  water  originally  intended  to  flow 
through  it.^ 

23.  Although,  as  has  more  than  once  been  said,  no  ease- 
ment in  one  parcel  can  be  said  to  be  appurtenant  to  another 
by  reason  of  any  use  made  of  the  two,  so  long  as  they 
[*43]  both  *belong  to  the  same  person,  the  cases  are  nu- 
merous where,  upon  dividing  the  heritage,  as  it  is 
called,  —  that  is,  by  the  owner  of  two  or  more  estates  or 
parts  of  an  estate  selling  one  of  them  by  itself,  and  retaining 
the  other,  or  conveying  it  to  some  third  person,  —  privileges 
in  favor  of  the  one  have  been  held  to  pass  as  incident  to  the 
same,  and  a  corresponding  burden  imposed  upon  the  other, 
from  the  nature  of  the  estate,  the  arrangement  of  the  parts 
of  the  estate,  and  the  degree  of  necessity  there  is  of  giving 
such  a  construction  to  the  conveyance,  in  order  to  give  it  a 
reasonable  effect.  This  is  not  intended  to  embrace  that  class 
of  cases  already  referred  to,  where,  as  in  the  case  of  a  way, 
an  estate  is  conveyed  granting  therewith  "  all  ways "  or 
"  ways  in  use,"  the  ways  actually  used  in  connection  with 
the  part  granted  have  been  held  to  pass  by  the  terms  of  the 
deed. 

The  ground  upon  which  this  doctrine  both  of  the  French 
and  the  common  law  rests  seems  to  be,  that,  where  the  owner 
of  two  heritages,  or  of  one  heritage  consisting  of  several 
parts,  has  arranged  and  adapted  these  so  that  one  derives  a 
benefit  or  advantage  from  the  other  of  a  continuous  and 
obvious  character,  and  he  sells  one  of  them  without  making 

1  Carter  v.  Tagc,  8  lied.  190. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  55 

mention  of  those  incidental  advantages  or  burdens  of  one 
in  respect  to  the  other,  there  is  in  the  silence  of  the  parties 
an  implied  understanding  and  agreement  that  these  advan- 
tages and  burdens,  respectively,  shall  continue  as  before  the 
separation  of  the  title. ^ 

Thus  where  two  parcels  lay,  one  in  front  and  the  other 
in  rear,  in  relation  to  a  highway,  and  there  was  a  private 
way  used  over  the  front  lot  from  the  rear  one  to  the  high- 
way, and  the  owner  of  the  two  conveyed  the  front  lot  to  a 
stranger,  it  was  held  that  he  took  it  subject  to  the  use  of 
this  private  way  from  the  rear  lot  to  the  highway.  It  be- 
came, at  once,  a  way  appurtenant  to  the  rear  lot.^  So  where 
a  parcel  of  land  was  conveyed  to  which  the  owner  had  been 
accustomed  to  have  access  by  a  way  across  another  open 
parcel  to  the  highway,  it  was  held  that  his  grantee  might 
use  this  way,  though  not  one  of  absolute  necessity,  if  another 
way  could  not  be  constructed  by  him  at  a  reasonable  expense, 
having  reference  to  the  value  of  the  land.^ 

*24.  Questions  of  this  kind  have  often  arisen  in  [*44] 
cases  of  one  or  more  houses  erected  in  a  block  be- 
longing to  the  same  owner,  where  one  is  dependent  upon 
another  for  its  lateral  support,  or  the  water  collecting  in  the 
one  has  been  discharged  by  a  drain  through  another,  and 
the  like,  and  in  some  cases  in  respect  to  lights  in  houses 
which  have  been  conveyed. 

Thus  in  Richards  v.  Rose,  the  proprietor  of  a  parcel  of 
land  erected  a  number  of  dwelling-houses  upon  the  same 
in  one  block,  each  supporting  the  other,  and  each  obviously 
needing  the  support  of  the  other.  It  was  held  that,  if  he 
conveyed  one  of  these,  he  created  an  easement  of  support 
in  its  favor  as  against  the  adjoining  house,  and  a  servitude 

1  See  ante,  sect.  1,  pi.  21,  as  to  Destination  dupere  defamille.    Post,  p.  *53  ;  Penn. 
R.  R.  V.  Jones,  .50  Penn.  424. 

2  M'Tavish  v.   Carroll,   7  Md.  352.      See  Brakely  v.   Sharp,   1    Stockt.   9  ; 
McCarty  v.  Kitcheninan,  47  Penn.  239. 

8  Pettingell  u.  Porter,  8  Allen,  1. 


56  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

upon  the  adjoining  tenement  of  support  to  the  one  which 
he  had  granted.^ 

25.  So  many  questions,  especially  of  late,  have  turned 
upon  the  construction  and  effect  of  conveying  part  or  parts 
of  one  or  more  heritages,  which  the  owner  had  so  adapted 
or  arranged  as  to  make  certain  uses  of  one  part  convenient 
or  necessary  for  the  enjoyment  of  the  other,  that  a  special 
reference  to  decided  cases  becomes  proper,  in  order  to 
ascertain,  if  possible,  the  rule  or  test  by  which  to  determine 
whether  and  how  far  an  easement  or  servitude  may  thereby  be 
granted  or  reserved  by  implication. 

Under  the  French  law,  this  is  provided  for  by  the  code. 
What  is  there  called  la  destination  dii  pere  de  famille  "  has 
the  effect  of  writing  in  regard  of  continued,  and  apparent  ser- 
vitudes." And  "  if  the  owner  of  two  heritages,  between 
which  there  exists  an  apparent  mark  of  servitude,  dispose  of 
one  of  the  two  heritages  without  the  contract  containing  any 
agreement  relative  to  the  servitude,  it  continues  to  exist, 
actively  or  passively,  in  favor  of  the  property  aliened,  or 
upon  the  property  aliened,"  ^  This,  it  will  be  perceived,  is  a 
positive  inference  of  law  from  the  act  of  the  parties,  rather 
than  the  constructive  terms  of  an  agreement  between  them. 
And  yet,  according  to  Pardessus,  it  is  not  in  consequence  of 
the  principle  that  servitudes  follow  the  estates  to  which  they 
belong,  into  whosesoever  hands  they  come,  since  no  one  can 
owe  a  servitude  to  himself,  but  by  a  just  and  legitimate 
presumption  of  intention  with  which  they  were  created,  and 
the  silence  of  the  one  who  makes  a  disposition  of  the  estate, 
and  the  good  faith  which  is  due  to  him  who,  seeing  the 
condition  of  the  estates,  has  a  right,  naturally,  to  conclude 
that  they  were  thus  transmitted  by  the  vendor.^ 

The  same  principle  has  been  adopted,  by  analogy,  to  a 
greater  or  less  extent,  by  different  courts,  as  a  basis  of  con- 

1  rviclinrds  v.  Rose,  9  Excli.  218  ;  mite,  sect.  1,  pi.  21. 
••^  Barrett's  Cod.  Nap.  ^§  C92,  094. 
"  rardcs.  Serv.  447. 


Skct.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  67 

struing  grants,  though  it  is  believed  that  the  common  law, 
in  order  to  give  this  effect,  requires  that  what  is  thus  claimed 
as  a  servitude  or  easement  should  be  reasonably,  and  in 
some  cases  absolutely,  necessari/  as  well  as  continuous  and 
apparent.  This  analogy  to  the  French  law  is  expressly  rec- 
ognized by  the  Court  of  Pennsylvania,  in  the  case  of  a  way 
which  was  claimed  by  the  devisee  of  one  part  of  an  estate  over 
another  part  of  the  same  estate  in  the  hands  of  another  de- 
visee. The  testator  had,  in  his  lifetime,  divided  his  estate 
among  his  sons  in  distinct  occupancy,  retaining  one  part  in 
his  own  possession,  but  gave  them  no  title  to  the  same  dur- 
ing his  lifetime.  One  of  the  sons  in  occupying  his  part  made 
use  of  a  way  which  the  father  had  constructed  before  the  di- 
vision over  that  in  possession  of  the  father,  which,  a  part  of 
the  distance,  was  fenced  out  as  such,  and  over  this  the  son 
had  passed  to  mill  and  to  meeting  and  a  neighboring  village, 
the  same  being  his  most  convenient  way  to  and  from  these. 
After  the  father's  death,  the  one  to  whom  he  devised  the 
homestead  part,  denied  to  the  devisee  of  the  other  part  the 
right  to  pass  over  this  way.  But  the  court,  though  they  say 
that  such  easements  were  commonly  those  of  water,  like 
drains,  water-pipes  <fec.,  yet  being  a  distinct  and  notorious 
way  fenced  out,  it  passed  as  a  permanent  disposition  as 
appurtenant  or  perhaps  as  parcel  of  the  property  devised, 
placing  it  upon  the  intention  of  the  testator  and  not  upon 
any  necessity  there  was  for  such  way.^ 

The  case  of  Ewart  v.  Cockrane  is  often  quoted  as  a  leading 
one  upon  this  subject.  The  premises  were  a  dwelling-house, 
garden,  and  tan-yard,  the  tan-yard  being  owned  by  one,  and 
the  house  and  garden  by  another,  from  1788  to  1806.  They 
then  were  owned  by  the  same  person  until  1819.  In  1819 
the  owner  conveyed  the  tan-yard,  and  it  came,  at  last,  to  the 
defendant.     In  1822  he  conveyed  the  house  and  garden,  and 

1  Phillips  V.  Phillips,  48  Penn.  178  ;  Pcnn.  R.  R.  v.  Jones,  50  Pcmn.  424 ;  Keif- 
fer  V.  Imhoff,  26  Penn.  438.  See  Huttemeier  v.  Albro,  18  N.  Y.  48;  post,  p. 
*46 ;  McCarty  v.  Ivitcheuman,  47  Penn.  239. 


58  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

they  came  to  the  plaintiff.  There  had  been  a  drain  in  use 
from  the  tan-yard  into  a  cesspool  or  tank  in  the  garden,  from 
1788,  and  was  continued  till  1853,  when  the  defendant  stopped 
it.  The  Chancellor,  Ld.  Campbell,  said,  "  I  consider  the  law 
of  Scotland  as  well  as  the  law  of  England  to  be,  that  when 
two  properties  are  so  possessed  by  the  same  owner,  and  there 
has  been  a  severance  made  of  part  from  the  other,  anything 
which  was  used  and  was  necessary  for  the  comfortable  enjoy- 
ment of  that  part  of  the  property  which  is  granted,  shall  be 
considered  to  follow  from  the  grant,  if  there  be  the  usual 
words  in  the  conveyance.  I  do  not  know  whether  the  usual 
words  are  essentially  necessary,  but  when  there  are  the  usual 
words,  I  cannot  doubt  that  that  is  the  law."  Both  he  and 
Lord  Chelmsford  held  that  the  easement  passed  with  the  tan- 
yard,  because  it  was  "  necessary  for  the  convenient  and  com- 
fortable enjoyment  of  the  property,  as  it  existed  before  the 
gi'ant."  1 

In  Worthington  v.  Gimson,  two  farms  and  two  parcels 
adjoining  belonging  to  two  persons  in  common,  partition  was 
made  between  them,  giving  one  farm  and  the  two  parcels  to 
one,  and  the  other  farm  to  the  other,  and  in  the  deeds  were 
included  "  their  and  every  of  their  rights,  members,  ease- 
ments, and  appurtenances."  A  way  had  previously  been  in 
use  across  the  two  parcels  for  the  accommodation  of  the  farm 
set  to  the  other  owner,  who  now  claimed  it  as  an  easement. 
But  the  court  held  that  it  did  not  pass,  as  it  did  not  appear 
to  be  necessary  for  the  enjoyment  of  the  premises.  "  It 
would  not  pass  under  the  term  '  appurtenances,'  because  the 
way  is  not  within  the  strict  legal  sense  of  that  word."  There 
may  be  a  class  of  easements  like  drains  or  sewers,  which 
must  necessarily  be  intended  to  remain  after  the  severance 
of  the  property,  and  in  such  case  the  necessity  of  the  ease- 
ment may  be  ascertained.^ 

1  Ewart  V.  Cockrane,  4  McQueen,  117.     Sec  also  Hall  v.  Lund,  1  H.  &  Colt, 
C76  ;  Shaw  v.  EtlicridKC,  3  Jones,  N.  C.  300. 

^  Wortliinyton  v.  Gimson,  29  L.  Jour.  Q.  B.  116;  2  E.  &  Ellis,  C18. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  69 

The  rule  of  the  French  law  is  also  referred  to  by  the  court 
of  N,  Jersey,  in  the  case  of  an  aqueduct  which  was  held  to 
be  reserved  to  tlie  grantor,  although  not  in  express  terms, 
upon  the  principle  that  where  the  owner  of  two  parcels  so 
arranges  one  in  reference  to  the  other  as  to  derive  an  appar- 
ent and  continuous  benefit  from  what  is  of  the  nature  of  an 
easement  in  the  other,  and  he  conveys  one  of  the  parcels,  it 
carries  with  it  or  is  subject  to  the  enjoyment  of  this  as  an 
easement  in  fact.  In  that  case,  the  owner  of  a  paper-mill 
and  a  lot  with  a  spring  in  it,  laid  an  aqueduct  from  the  spring 
to  his  mill  for  the  use  of  the  latter.  He  subsequently  con- 
veyed the  spring,  but  without  reserving  the  easement  of  the 
aqueduct,  and  it  was  held  that  the  grant  was  subject  to  this 
easement,  it  being  open,  apparent,  and  continuous  in  its  char- 
acter ;  nor  is  the  idea  of  supplying  water,  elsewhere,  raised  in 
the  discussion  of  the  case.^ 

But  where  the  thing  to  be  used  is  disconnected  from  tUe 
estate  to  which  it  is  claimed  as  appurtenant,  and  its  use  is  not 
continuous,  the  right  of  enjoyment  of  it  will  not  pass  as  an 
incidental  easement  upon  dividing  the  heritage.^ 

A  case  where  a  right  of  way  was  held  to  pass  upon  grant- 
ing one  of  two  parcels  belonging  to  the  same  person,  although 
not  a  way  of  necessity,  but  because  the  parcels  had  been  so 
used  in  relation  to  each  other  by  the  owner,  was  this.  There 
were  three  parcels  of  land,  the  first  and  third  belonged  to  A, 
who  had  a  prescriptive  right  of  way  from  1  to  3  across  2,  and 
in  going  from  3  to  a  public  way,  A  used  to  pass  across  2  and 
1.  A  sold  3  to  a  third  person,  and  it  was  held  that  the  right 
of  way  across  2  passed  as  appurtenant  to  that  lot,  and  that  a 
right  to  pass  across  1  to  the  public  way  passed  also  as  an 
easement,  although  the  purchaser  could  have  access  to  it  by 
a  less  convenient  way.^ 

1  Seymour  v.  Lewis,  13  N.  J.  439. 

2  Polden  V.  Bastard,  4  B.  &  Smith,  258. 

2  Leonard  v.  Leonard,  7  Allen,  277,  283.     See  also  Pearson  v.  Spencer,  1  B. 
&  Smith,  580;  s.  c,  3  B.  &  Smith,  76L 

« 


60  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

And  another  case,  where  the  condition  and  use  of  the 
property  granted,  in  case  of  several  parcels  owned  by  one 
person  and  conveyed  separately  by  him,  serve  to  fix  the 
rights  of  the  purchasers,  was  this  :  A  owned,  upon  a  stream, 
two  mills,  and  B  owned  an  intermediate  mill  upon  the  same 
stream.  A  opened  a  sluice  from  above  the  dam  of  B,  along 
the  bank  of  the  stream  to  his  lower  mill,  thereby  drawing  a 
part  of  the  water  in  B's  pond  to  the  pond  of  the  lower  mill. 
In  this  state  of  the  property,  A  purchased  B's  mill,  thereby 
owning  the  three  estates,  and  subsequently  sold  them  to 
three  distinct  purchasers.  And  it  was  held  that  the  pur- 
chaser of  the  middle  mill  took  it  subject  to  the  right  in  the 
lower  one  to  draw  the  water  from  the  pond  of  that  mill  in 
the  manner  in  which  it  was  done  when  the  conveyance  was 
made.^ 

In  Louisiana,  when  a  party  grants  an  estate  to  which  an 
ajiparent  easement  belongs,  he  is  considered  as  warranting 
that  he  will  do  nothing  to  prevent  its  full  enjoyment,  though 
no  mention  is  made  of  it  in  the  grant.^ 

The  latest  English  case  which  has  come  to  hand  bear- 
ing upon  this  subject  is  Russell  v.  Harford,  decided  in 
1866.-^  In  that  case  the  defendant  was,  originally,  the  owner 
of  two  adjoining  parcels  with  dwelling-houses  thereon,  which 
he  had  let  to  two  different  tenants.  On  lot  A  was  a  well, 
from  which  the  tenant  of  lot  B  by  permission  drew  water 
for  his  premises,  by  a  pipe  laid  from  B  to  the  well.  In  this 
condition  of  things,  the  lots  were  sold  by  the  defendant  at 
auction,  A  being  first  bid  off  by  the  tenant  thereof,  and  then 
B,  by  the  tenant  of  that  lot.  The  plaintiff  bid  off  A,  and  the 
defendant,  the  vendor,  declined  delivering  any  deed  of  the 
estate  unless  it  contained  a  reservation  or  exception  of  the 
right  of  the  owner  of  B  to  draw  water  from  the  well,  and 
the  right  to  repair  and  renew  the  pipe  aforesaid. 

1  Elliott  V.  Salk'C,  14  Oliio  St.  10;  Morgan  v.  Mason,  20  Oliio,  401. 
-  Bruning  v.  N.  Orleans  Canal,  &c.,  12  Louis.  An.  541. 
8  Itussell  V.  Harford,  L.  R.  2  Eq.  507. 


Sect.  3.]  ACQUIRING    EASEMENTS   BY    GRANT.  61 

The  suit  was  in  equity  to  compel  the  defendant  to  give  an 
unrestricted  deed.  One  of  the  conditions  of  sale  stated  that 
the  premises  were  sold  "  subject  —  to  rights  of  way  and  water, 
and  other  easements  (if  any)  charged  or  subsisting  thereon." 

The  purchaser  of  B,  had  been  tenant  from  year  to  year  of 
the  premises  which  he  bid  off.  The  plaintiff  insisted  that  the 
facts  did  not  establish  a  right  of  easement  to  water  in  B  over 
A,  but  that  the  quasi  servitude  to  which  the  latter  had  been 
subjected  by  the  owner,  was  discharged  by  his  absolute  sale 
thereof  to  a  purchaser  by  the  vendor  of  both  parcels  while 
he  owned  them  botli,  and  he  cited  Sufifield  v.  Brown  as  an 
authority.  The  defendant  insisted  that  the  easement  passed 
because  lot  B  would  be  useless  without  the  right  to  water, 
and  cited  Wardle  v.  Brocklehurst,^  but  did  not  refer  to  Pyer 
V.  Carter.  The  Vice-Chancellor,  Kindersley,  without  citing 
any  authority,  held  that  this  right  could  not  have  been  em- 
braced in  the  expressions  used  in  the  conditions  of  sale,  as 
the  only  right  of  the  tenant  of  B  to  draw  water  was  by  license 
from  the  owner,  that  the  two  purchasers  of  the  lots  made 
their  contracts  upon  the  basis  of  the  conditions  of  sale,  and 
that  if  it  had  intended  to  create  a  right  or  liability  as  be- 
tween the  purchasers  of  the  different  lots,  it  should  have 
been  clearly  expressed  in  the  terms  of  the  sale,  and  in  the 
absence  of  any  such  restriction  or  limitation,  the  plaintiff 
was  entitled  to  a  deed  without  other  exception  or  reservation 
of  the  servitude  claimed. 

The  case  therefore  seems  to  have  turned  upon  the  con- 
struction given  to  the  contract  of  the  parties,  rather  than 
upon  any  implied  grant  or  reservation  of  a  right  growing 
out  of  the  sale  of  one  of  two  heritages.  And  another  cir- 
cumstance in  the  case  distinguishes  it  from  those  where  the 
parts  of  the  heritage  have  been  arranged  and  adapted  to 
each  otlicr  by  the  owner  thereof,  since,  in  the  case  under 
consideration,  the  laying  of  the  pipe  from  the  well  in  one 
parcel  to  the  house  on  the  other,  was  done  by  the  tenants 

1  Wurdlc  V.  Brocklclmrst,  29  L.  J.  (Q.  B.),  145. 


62  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

thereof,  independent,  for  aught  that  appears,  of  any  act  or 
intention  on  the  part  of  the  owner  of  the  estate. 

25  a.  In  several,  especially  of  the  more  recent,  cases  which 
have  been  cited,  that  of  Pyer  v.  Carter  has  been  referred  to, 
and  an  importance  given  to  it  which  renders  it  desirable  to 
ascertain  to  what  extent  it  is  to  be  regarded  as  a  statement 
of  what  the  law  is  upon  the  subject  of  which  it  treats. 

The  case  is  repeatedly  cited  in  the  present  work,  and  was 
received,  at  the  time  of  the  preparation  of  the  former  edition, 
as  the  law  of  the  English  courts.  It  is  reported  in  1  II.  & 
Norm.  916,  and  the  facts,  as  stated,  were  these  :  The  plain- 
tiff's and  defendant's  houses  adjoined  each  other.  They  had 
formerly  been  one  house,  and  were  converted  into  two  by  the 
owner  of  the  whole  property.  Subsequently  the  defendant's 
house  was  conveyed  to  him,  he  knowing  the  existence  of  this 
'drain  ;  and  after  that  the  plaintiff  took  a  conveyance  of  his 
house  from  the  same  grantor.  At  the  time  of  the  respective 
conveyances,  the  drain  ran  under  the  plaintiff's  house  and 
then  under  the  defendant's  house,  and  discharged  itself  into 
'the  common  sewer.  The  plaintiff's  house  was  drained 
through  this  drain  ;  but  he  might  have  stopped  it,  and  made 
a  new  one  over  his  own  land  into  the  sewer,  for  six  pounds. 
The  court  held  that,  under  these  circumstances,  the  plaintiff 
had  an  easement  of  drain  through  the  defendant's  premises 
by  an  implied  grant,  and  that  the  defendant  was  liable  for 
stopping  it.  The  Chancellor,  in  giving  an  opinion  in  the  case 
of  Suflfield  V.  Brown,^  seems  to  have  gone  out  of  his  rec- 
ord to  attack  and  endeavor  to  overrule  this  case  of  Pyer  v. 
Carter.  The  case  before  him  was  one  where  a  man,  owning 
a  dock  and  wharf,  with  a  strip  of  land  adjoining  it,  sold  the 
wharf  and  strip  of  land,  without  making  any  reserve  in  favor 
of  the  dock.  He  had  been  accustomed,  when  using  the  dock 
for  vessels,  to  have  their  bowsprits  extend  over  some  part  of 
the  wharf,  and,  from  the  size  of  the  dock,  this  was  necessary 
in  order  to  have  vessels  lie  there.     He  attempted  to  enforce 

1  10  Jur.  N.  s.  111. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  63 

this  right  against  his  grantee,  but  the  court  refused  him  the 
relief  whicli  he  claimed.  The  easement  claimed  was,  obvi- 
ously, a  non-continuous  one,  nor  was  there  anything  to  render 
it  apparent  beyond  the  fact  of  the  size  and  dimensions  of  the 
dock.  The  connection  between  such  an  easement  as  this 
and  the  case  of  a  drain,  as  in  Pyer  v.  Carter,  is  far  from  be- 
ing obvious.  But  the  Chancellor  takes  occasion  to  go  much 
at  length  into  the  doctrine  of  easements  by  implied  grants. 
He  cites  from  Mr.  Gale's  work  his  remarks  upon  this  sub- 
ject, and  adds  :  "  But  I  cannot  agree  that  the  grantor  can 
derogate  from  his  own  absolute  grant,  so  as  to  claim  rights 
over  the  thing  granted,*even  if  they  were,  at  the  time  of  the 
grant,  continuous  and  apparent  easements  enjoyed  by  an 
adjoining  tenement  which  remains  the  property  of  him, 
the  grantor."  He  next  proceeds  to  comment  upon  the  doc- 
trine of  destination  du  pere  de  famil/e,  in  the  manner  already 
stated,!  and  then  notices  "  the  fallacy  in  the  judgment  of  the 
Court  of  Exchequer  in  the  case  of  Pyer  v.  Carter  "  ;  and  con- 
cludes, "  I  cannot  look  upon  the  case  as  rightly  decided,  and 
must  wholly  refuse  to  accept  it  as  an  authority."  He  ap- 
proves of  the  doctrine  of  Nicholas  v.  Chamberlain,^  and  Sury 
V.  Pigott,^  which  are  also  repeatedly  referred  to  in  the  pres- 
ent work,  and  admits  that  there  may  be  two  adjoining  houses 
so  constructed  as  to  be  mutually  subservient  to  and  depend- 
ent on  each  other,  neither  being  capable  of  standing  or  being 
enjoyed  without  the  support  it  derives  from  its  neighbor,  in 
which  case  the  alienation  of  the  one  house  by  the  owner  of 
both,  would  not  estop  him  from  claiming,  in  respect  of  the 
house  he  retains,  that  support  from  the  house  sold  which  is, 
at  the  same  time,  afforded  in  return  by  the  former  to  the  lat- 
ter tenement,  as  in  Richards  v.  Rose.*  But  where  the  right 
is  separable,  it  is  severed,  and  either  passed  or  extinguished  by 
the  grant.  If  it  were  not  for  what  is  said  by  him  of  Nicholas 
V.  Chamberlain,  it  might,  perhaps,  be  assumed,  that  he  made 

1  Ante,  p.  *17.  *  Palmer,  444. 

2  Cro.  Jac.  121.  *  9  Exch.  218. 


64  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

a  distinction  between  granted  and  reserved  rights.  But  that 
case  expressly  disregards  such  a  distinction.  Some  of  the 
Chancellor's  positions  certainly  seem  to  be  opposed  to  opin- 
ions which  more  than  one  of  the  American  courts  have  ex- 
pressed, and  as  to  the  point  ruled  by  the  court  in  Pyer  v. 
Carter,  the  weight  of  authority,  so  far  as  numbers  are  con- 
cerned, seems  to  be  against  his  opinion. 

Thus,  in  one  case,  Martin  B,  says  Pyer  v.  Carter  "  was  no 
more  than  an  implied  grant  of  a  right  analogous  to  thatwof 
flowing  water,"  and  "  went  to  the  utmost  extent  of  the  law  ; 
but,  if  considered,  that  decision  cannot  be  complained  of;  for 
if  a  man  have  two  fields  drained  by  an  artificial  ditch  cut 
through  both,  and  he  grants  to  another  one  of  these  fields, 
neither  he  nor  the  grantee  can  stop  up  the  drain  in  it.  I 
agree  with  the  law  as  laid  down  in  that  case,  and  I  think  it 
may  be  supported  without  extending  the  doctrine  of  the  right 
of  way."  1 

Channel  B.  in  Hall  v.  Lund  says  :  "  In  Ewart  v.  Coch- 
rane, the  House  of  Lords  confirmed  the  principle  of  the  deci- 
sion in  Pyer  v.  Carter,"  and  adds,  "  the  case  of  Pyer  v.  Car- 
ter, which  was  confirmed,  and  its  principle  explained  by  the 
House  of  Lords,  compels  me  to  come  to  this  conclusion," 
that  is,  the  judgment  which  he  rendei'cd  in  that  case.^ 

The  doctrine  of  Pyer  v.  Carter  is  recognized  more  or  less 
directly  and  authoritatively,  in  the  cases  following,  viz. :  By 
the  Chancellor  in  Ewart  v.  Cochrane,  by  Wightman  J.  in 
Worthington  v.  Gimson,^  and  Polden  v.  Bastard,^  by  the 
New  York  court  in  Huttemeier  v.  Albro,^  by  the  reporter  in 
Glave  V.  Harding,^  and  by  the  court  of  Pennsylvania  in 
McCarty  v.  Kitchcnman,"  in  which  the  opinion  of  the  Chan- 
cellor in  Sufficld  V.  Brown,  is  referred  to,  with  the  remark 
that  the  easement  in  that  case  was  neither  continuous  nor 

1  Dodd  V.  Buichell,  1  H.  &  Colt,  121. 

2  1  II.  &  Colt.  081,  G85.     See  also  105  Eng.  C.  Law  Rep.  62G ;  note  Am.  Ed. 
8  2  E.  &  Ellis,  C18. 

*  4  B.  &  Smith,  258.  ^  3  II.  &  Norm.  944  note. 

6  18  N.  y.  52.  ''  47  Tenn.  St.  24.3. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY  ORANT.  65 

apparent,  and  it  docs  not  seem  to  have  been  regarded  as  an 
authority  in  deciding  the  case  then  before  them. 

In  Crossley  v.  Lightowler,  in  1866,  the  counsel  on  both 
sides  refer  to  Pyer  v.  Carter,  and  Suffield  v.  Brown,  and  the 
Vice-Chancellor  Wood  states  what  the  decision  in  the  former 
established,  without  any  suggestion  that  it  is  not  a  reliable 
authority,  and  one  of  the  counsel  insists  that  Suffield  v. 
Brown  does  not  overrule  it.^ 

The  case  is  also  cited  by  Chapman  J.,  in  Leonard  v.  Leon- 
ard ,2  and  by  Hoar,  J.,  in  Carbrey  v.  Willis,-^  but  without  com- 
ment or  objection.  Nor  has  any  case  except  Suffield  v. 
Brown  been  found  which  militates  with  the  doctrine  of  that 
case,  unless  that  of  Randall  v.  McLaughlin  *  is  to  be  so  re- 
garded. 

In  the  latter  case,  Hoar,  J.,  in  giving  the  opinion  of  the 
court,  says:  "  The  authority  of  Pyer  v.  Carter,  the  leading 
English  case  on  which  the  plaintiff  relies,  was  wholly  denied 
by  the  Chancellor  of  England  in  the  opinion  given  in  Suffield 
V.  Brown,  which  contains  an  elaborate  review  of  the  whole 
doctrine,  resulting  in  conclusions  substantially  like  those  to 
which  we  came  in  Carbrey  v.  Willis."  The  facts  and  judg- 
ment in  the  last-mentioned  case  were  these.  A  drain  was 
an  ancient  one  constructed  by  the  owner  of  two  or  more 
houses,  passing  from  one  under  the  other  to  the  place  of  dis- 
charge. One  of  these  houses  he  sold  to  one  person,  and  the 
other  to  another,  but  the  drain  was  not  apparent,  and  neither 
of  the  purchasers  knew  of  its  existence  for  many  years  after 
such  purchase  by  them,  when  it  was  discovered  by  becoming 
obstructed.  As  the  lower  of  the  two  houses  was  first  sold, 
if  the  drain  could  be  claimed  for  the  benefit  of  the  upper 
one,  it  must  be  by  way  of  implied  reservation.,  as  in  the  case 
of  Pyer  v.  Carter,  as  it  was  not  mentioned  in  the  deed.  The 
court,  with  obvious  propriety,  held  "  that  no  easement  can 
be  taken  as  reserved  by  implication  unless  it  is  de  facto  an- 

1  L.  R.  3  Eq.  286.  ^  7  Allen,  369. 

2  7  Alien,  283.  *  10  Allen,  366. 


6Q  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

nexed  and  in  use,  at  the  time  of  the  grant,  and  is  necessary 
to  the  enjoyment  of  the  estate  which  the  grantor  retains." 
"  Where  there  is  a  grant  of  land  by  metes  and  bounds  with- 
out express  reservation,  and  with  full  covenants  of  warranty 
against  encumbrances,  there  is  no  just  cause  for  holding  that 
there  can  be  any  reservation  by  implication,  unless  the  ease- 
ment is  strictly  one  of  necessity." 

The  case  of  Randall  v.  McLaughlin  was  in  many  respects 
like  that  of  Carbrey  v.  Willis.  There  was  a  drain  passing 
from  one  house  under  the  other,  both  of  which,  originally, 
belonged  to  one  man  who  conveyed  the  lower  house,  with 
covenants  of  warranty,  to  one,  and  subsequently  the  upper 
house  to  another.  But  the  Court  held  that  this  drain  did 
not  attach  as  an  easement  to  the  upper  house,  because  the 
requisite  necessity  "  does  not  exist,  in  the  view  of  the  law, 
where  an  equally  beneficial  drain  •  could  be  built  on  the 
plaintiff's  land  with  reasonable  labor  and  expense."  Refer- 
ence is  also  made  to  Johnson  v.  Jordan  ^  and  Thayer  v. 
Payne.^ 

Both  these  cases  have  also  been  repeatedly  referred  to  in 
this  work,  and  they  are  now  recalled  only  so  far  as  they  are 
supposed  to  bear  upon  the  point  under  consideration.  In 
the  first  of  these,  which  was  the  case  of  a  drain  passing 
under  two  or  more  houses  originally  belonging  to  one  person, 
who  had  sold  and  granted  them  separately  at  auction  on  the 
same  day,  to  distinct  owners,  no  mention  was  made  of  the 
drain  in  the  conveyance.  The  judge  instructed  the  jury  that 
if,  with  reasonable  labor  and  expense,  a  drain  could  be  made 
without  going  through  the  plaintiff's  (the  lower)  house,  the 
owner  of  the  other  house  had  no  right  to  enter  and  open  the 
drain  on  the  plaintiff's  premises,  and  the  jury  found  that 
such  drain  could  be  made.  The  court  put  the  question  of 
right  of  casement  upon  the  construction  to  be  given  to  the 
deed,  in  which  the  intention  of  the  parties  was  not  expressed 
in  terms.     Tliey  distinguish  between  an  artificial  drain  and 

1  Post,  p.  82 ;  2  Mete.  234.  "^  2  Cush.  327. 


Sect.  3.]  ACQUIRING    EASEMENTS   BY   GRANT.  67 

a  watercourse,  the  latter  of  whicli  no  proprietor  lias  a  right 
to  obstruct  or  divert,  nor  is  it  affected  by  any  unity  of 
ownership  of  two  estates  over  which  it  flows.  In  case  of  an 
artificial  drain  passing  from  one  parcel  through  another,  and 
the  owner  grant  the  first,  "  such  drain  may  be  construed  to 
be  de  facto  annexed  as  an  appurtenance  and  pass  with  it." 
Whereas,  if  the  grant  be  of  the  second  or  lower  parcel, 
while  the  grantor  owns  the  first,  "  it  might  reasonably  be 
considered  that,  as  the  right  of  drainage  was  not  reserved  in 
terms,  when  it  naturally  would  be  if  so  intended,  it  could 
not  be  claimed  by  the  grantor.  The  grantee  of  the  lower 
tenement,  taking  the  language  of  the  deed  most  strongly  in 
his  favor  and  against  the  grantor,  might  reasonably  claim  to 
hold  his  granted  estate  free  of  the  encumbrance."  This, 
however,  was  obiter  reasoning  on  the  part  of  the  court,  for 
they  add,  "  but  neither  of  these  rules  will  apply  to  the 
present  case,"  the  conveyances  of  the  two  parcels  being 
simultaneous,  and  being  like  a  partition  between  two  tenants 
in  common,  "  where  each  party  takes  his  estate  with  the 
rights,  privileges,  and  incidents  inherently  attached  to  it," 
rather  than  the  case  of  grantor  and  grantee,  where  the 
grantor  conveys  a  part  of  his  land  by  metes  and  bounds,  and 
retains  another  part  to  his  own  use.  In  the  case  of  Johnson 
V.  Jordan,  certain  easements  and  servitudes  were  attached 
to  the  parcels  granted,  and  were  described  in  the  conveyances. 
But  as  this  right  of  drain  was  not  mentioned,  "  and  as  it  was 
not  necessary  to  the  enjoyment  of  the  estate,  and  had  not 
been  de  facto  annexed  so  as  to  pass  by  general  words  as 
parcel  of  the  estate,  it  did  not  pass  by  force  of  the  deed." 

In  Thayer  v.  Payne,  the  grant  was  of  the  upper  of  two 
parcels,  the  grantor  retaining  the  lower  one.  It  was  held, 
that  if  the  use  of  the  drain  was  necessary  to  the  beneficial 
enjoyment  of  the  premises  granted,  the  right  to  use  it  would 
pass.  But  the  court  add,  "  the  settlement  of  this  question 
will,  of  course,  involve  the  inquiry,  whether  or  not  a  drain 
could  be  conveniently  made  with  reasonable  labor  and  ex- 


68  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

pense,  without  going  through  the  plaintiff's  land.  Because, 
if  the  defendant  can  furnish  his  house  with  a  drain,  it  cannot 
be  necessary  to  the  enjoyment  of  his  estate  that  he  should 
have  a  drain  through  the  land  of  the  plaintiff."  And  the 
language  of  the  court,  in  Carbrey  v.  Willis,  bearing  upon  the 
point  of  substituting  a  new  drain,  in  determining  liow  far  the 
one  in  use  is  to  be  regarded  as  necessary,  is,  "  this  necessity 
cannot  be  deemed  to  exist  if  a  similar  privilege  can  be 
secured  by  reasonable  trouble  and  expense."  "  Where  the 
easement  is  only  one  of  existing  use  and  great  convenience, 
but  for  which  a  substitute  can  be  furnished  by  reasonable 
labor  and  expense,  the  grantor  may,  certainly,  cut  himself 
off  from  it  by  his  deed,  if  such  is  the  intention  of  the  parties. 
And  it  is  difficult  to  see  how  such  an  intention  could  be  more 
clearly  and  distinctly  intimated  than  by  such  a  deed  of 
warranty."  And  this  doctrine  is  reaffirmed  in  Randall  v. 
McLaughlin. 

The  English  doctrine  of  Pyer  and  Carter  seems  to  be,  that 
if  one  owns  two  houses,  and,  what  is  true  of  most  houses,  a 
drain  of  some  kind  is  necessary  for  them,  and  the  owner 
makes  this  a  common  drain  for  both  by  its  passing  from  the 
upper  under  the  lower  house,  and  this  arrangement  of  its 
parts  is  obvious  and  apparent  to  any  observer  ;  and  he  con- 
veys one  of  these  to  another  who  sees  and  knows  the  condi- 
tion of  the  two  estates,  the  drain  is  to  be  regarded  as  it  were 
a  parcel  of  the  thing  granted,  an  easement  or  servitude,  as  it 
was  the  upper  or  lower  house  which  was  granted,  and  that 
all  covenants  and  grants  in  his  deed  would  have  reference  to 
this  state  of  things,  and  be  construed  accordingly.  He 
would  by  his  covenant  warrant  the  premises  as  they  were, 
instead  of  extinguishing  and  abandoning  the  enjoyment  of 
what  had  been  obviously  provided  and  intended  as  a  means 
of  what  was  necessary  to  the  enjoying  of  the  upper  premises, 
merely  because  he  warranted  the  lower  one  to  be  free  of  en- 
cumbrances. This  view  of  the  law  treats  such  a  drain  as  if 
it  were  a  permanent  watercourse,  without  distinguishing  be- 


Sect.  8.]  ACQUIRING   EASEMENTS   BY   GRANT.  »t         69 

tween  its  flowing  from  a  spring  upon  the  surface  of  the  soil, 
or  a  variety  of  smaller  springs  opened  by  digging  the  cellar 
upon  tlie  upper  lot,  the  water  of  which  must  be  disposed  of 
by  an  artificial  watercourse,  as  much  as  that  from  a  surface 
spring  by  its  natural  course. 

The  cases  of  Johnson  v.  Jordan  and  Carbrey  v.  Willis; 
seem  to  concede  the  doctrine  of  an  easement  being  granted 
or  reserved  by  implication  in  a  grant  in  all  cases  where  "  the 
easement  is  strictly  one  of  necessity."  But,  ordinarily,  deeds 
are  construed  by  the  language  in  which  they  are  expressed, 
if  -there  is  no  reference  made  to  extraneous  circumstances. 
And,  inasmuch  as  it  is  just  as  competent  for  the  owner  of 
premises,  if  he  so  intends,  to  extinguish  a  necessary  ease- 
ment as  it  is  to  extinguish  a  convenient  one,  to  fill  up  his 
cellar  or  abandon  its  use  as  to  dig  a  new  drain,  it  is  not 
easy  to  see  why  a  mere  covenant  of  warranty  against  en- 
cumbrances should  be  held  to  be  any  more  an  abandonment 
of  the  easement  in  the  one  case,  in  the  absence  of  any  words 
to  indicate  it,  than  in  the  other.  The  cases  are  numerous 
where  the  extent  of  the  covenants  in  a  deed  are  limited  by 
what  "  the  deed  in  its  descriptive  part  purports  to  convey."  ^ 

And  the  question  naturally  arises,  why,  so  far  as  words  go, 
the  same  covenant  in  one  case  should  be  held  to  intend  to 
relinquish  an  easement,  and  not  to  do  it  in  another.  And 
as  to  the  policy  of  the  two  rules,  the  English  must  be  re- 
garded as  the  more  definite  and  easy  of  application,  since 
what  is  "  reasonable  labor  and  expense  "  in  providing  a  new 
drain,  in  any  given  case,  is  a  mere  relative  term,  depending 
upon  the  circumstances  of  each  particular  case.  What  is 
reasonable  in  the  country  might  not  be  in  the  city,  and  what 
is,  by  that  standard,  necessary  for  a  cheap,  poor  house,  would 
not  be  for  a  costly  or  expensive  one. 

It  may  not  aid,  perhaps,  in  settling  a  question  like  this,  to 
refer  to  other  decided  cases,  but  there  are  some  which  seem 
to  bear  upon  the  general  principles  involved  in  this  distinc- 

1  Miller  v.  Ewing,  6  Cush.  40 ;  Adams  v.  Koss,  1  Vrooiu,  509. 


70  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Ch.  I. 

tiou  between  the  cases  of  Pyer  v.  Carter  and  Carbrey  v. 
Willis.  In  a  case  in  Pennsylvania,  where  the  question  was 
whether  an  existing  highway  was  an  encumbrance,  within 
the  meaning  of  covenants  in  a  deed,  the  court  say,  "  if  there 
be  a  public  road  or  highway,  open  and  in  use  upon  it  (the 
granted  estate),  he  must  be  taken  to  have  seen  it,  and  to 
have  fixed,  in  his  own  mind,  the  price  that  he  was  willing  to 
give  for  the  land  with  a  reference  to  the  road,  either  making 
the  price  less  or  more  as  he  conceived  the  road  to  be  inju- 
rious or  advantageous  to  the  occupation  and  enjoyment  of 
the  land."  i 

In  New  Ipswich  Co.  v.  Batchelder,  the  right  to  use  an 
artificial  canal  passed  with  a  grant  of  the  mill,  although  it 
extended  beyond  the  parcel  as  granted  by  metes  and  bounds.^ 

And  in  Nicholas  v.  Chamberlain,  as  already  said,  the  court 
held  that  an  artificial  aqueduct  would  pass  or  be  reserved  by 
implication,  upon  a  grant  of  the  house  to  which  it  was  ap- 
purtenant, or  the  land  in  which  it  was  laid,  as  the  case 
might  be,  though  it  was  not  named.^ 

Parke  B.,  in  Pheysey  v.  Vicary,  says:  "  If  it  is  necessary 
to  the  safety  of  a  house  that  the  water  should  flow  down  a 
drain,  the  right  of  watercourse  through  it  is  reserved  by  im- 
plication in  every  grant  of  the  house."  * 

And  in  Hurd  v.  Curtis,  where  one  had  a  certain  privilege 
of  water  for  a  mill,  which  used  to  flow  from  the  dam  to  his 
mill  in  an  artificial  trench,  across  an  intervening  piece  of 
land  which  he  Conveyed  to  another  person  while  so  used,  the 
court  suggest  whether  he  did  not,  by  implication,  reserve  a 
right  to  have  the  trench  kept  open,  as  it  was  the  open  and  visi- 
ble mode  of  operating  the  mill,  though  of  this  they  did  not 
give  any  decided  opinion.^ 

And  the  case  of  Seymour  v.  Lewis,  above  referred  to,  is  a 
case  of  a  reserve  of  the  water  of  a  spring  by  implication,  in 

1  Patterson  v.  Arthurs,  9  Watts,  154.  Sec  also  Lampnian  v.  Milks,  21  N.  Y. 
50.5  ;  post,  p.  *48. 

2  3N.  II.  190.  MG  M.  &  Wclsb.  489. 

3  Cro.  Jac.  121.  ^  7  Mete.  115. 


Skct.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  71 

land  granted,  in  which  no  mention  of  such  easement  was 
made.^ 

The  American  annotator  of  1  B.  &  Smith's  Reports,  in  a 
note  to  Pearson  v.  Spencer,  says :  "  It  may  be  considered  as 
settled  in  the  United  States,  that,  on  the  conveyance  of  one 
of  several  parcels  of  land  belonging  to  the  same  owner,  there 
is  an  implied  grant  or  reservation,  as  the  case  may  be,  of  all 
apparent  and  continuous  easements  or  incidents  of  property, 
which  have  been  created  or  used  by  him  during  the  unity  of 
possession,  though  they  could  then  have  had  no  legal  ex- 
istence apart  from  his  general  ownership."  And  he  cites 
numerous  cases  as  tending  to  establish  that  general  propo- 
sition.^ 

But  while  this  would  seem  to  sustain  and  be  fully  sus- 
tained by  the  case  of  Pyer  v.  Carter,  the  inference  to  be  drawn 
from  Carbrey  v.  Willis  and  Randall  v.  McLaughlin,  seems  to 
be,  that  though  this  would  be  true  where  the  dominant  estate 
is  conveyed  and  the  servient  estate  reserved,  it  would  not 
be  so  where  the  servient  estate  is  granted  and  the  dominant 
reserved,  unless  the  easement  claimed  is  one  strictly  of 
necessity  and  another  cannot  be  substituted  at  reasonable 
labor  and  expense.^ 

But  to  bring  a  case  within  the  principle  of  Pyer  v.  Carter, 
there  must  be  a  knowledge  on  the  part  of  the  grantor,  as 
well  as  the  grantee,  that  that  which  is  claimed  as  an  ease- 
ment in  favor  of  the  estate  granted,  existed  and  had  been  en- 
joyed. Thus,  where  a  land  company  conveyed  to  a  purchaser 
a  parcel  of  land  designated  by  metes  and  bounds,  on  which 
the  grantee,  without  their  knowledge,  had  erected  and  was 
then  using  a  mill,  the  dam  of  which  flowed  other  lands  of  the 
grantor's  than  those  conveyed,  it  was  held  that  the  purchaser 
did  not,  thereby,  acquire  any  right  to  flow  those  lands  as  an 
easement  appurtenant  to  an  existing  mill.^ 

26.   The  doctrine  is  broadly  stated,  that,  upon  the  sever- 

1  13  N.  J.  439 ;  ant,^,  pi.  25.  3  gee  post,  p.  *529. 

2  Post,  pp.  73,  7G,  77  ;  101  Eng.  C.  L,  586.      *  Tabor  v.  Bradley,  18  N.  Y.  109. 


72  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ca.  1. 

ance  of  a  heritage  by  a  grant  of  a  parcel  of  it,  it  will,  by 
implication,  pass  all  those  continuous  and  apparent  case- 
ments which  have  in  fact  been  used  by  the  owner  during 
the  unity  of  ownership  and  possession,  though  they  have  no 
legal  existence  as  proper  technical  easements.  And  in  ap- 
plying this  doctrine,  it  is  competent  to  show,  by  parol, 
[*45]  what  *  had  been  used  and  were  in  use  as  appurtenances 
of  the  estate,  at  the  time  of  its  conveyance,  but  not  to 
show  what  the  parties  intended  to  embrace  in  the  deed  as 
easements.^ 

Where  a  deed  poll  of  an  estate  recited  that  the  grantor  or 
his  heirs  was  to  have  a  right  of  way  over  the  granted  prem- 
ises to  the  grantor's  other  lands,  it  was  construed  to  bo  a  res- 
ervation of  a  way  to  the  grantor,  and  to  secure  to  him  the 
way,  not  merely  in  gross,  but  as  appurtenant  to  his  estate. 
And  it  was  further  held  by  the  court,  that,  had  the  way  been 
fenced  out  and  in  use,  such  a  recital  in  the  deed  would  have 
been,  in  effect,  an  exception  from  the  grant,  and  the  way 
would  thereby  have  become  appurtenant  to  the  grantor's 
other  land.2 

In  Durel  v,  Boisblanc,  where  two  houses  standing  upon 
two  lots,  with  an  alley  between  them,  were  sold,  and  it  was 
obvious  that  the  only  access  to  one  of  these  was  tlirough  this 
alley,  and  they  were  sold  at  the  same  time,  but  nothing  was 
said  in  the  deeds  of  any  right  of  passing  over  tliis  alley  to 
the  premises,  it  was  held  that  as  to  one  of  the  houses  an 
easement,  and  as  to  the  other  a  servitude  of  way  over  this 
alley,  were  created  by  the  grant  of  the  parcels  standing  in 
such  relation  to  each  other.^ 

The  right  in  such  cases,  it  will  be  perceived,  is  not  simply 
that  of  a  way  of  necessity,  which  is  limited  in  its  duration 

1  Kcnyon  v.  Nichols,  1  R.  I.  411.  See  Elliott  v.  Rhett,  5  Rich.  403  ;  Glave  v. 
Harding,  3  Ilurlst.  &  N.,  Am.  cd.  937  ;  2  Washb.  Real  Prop.  38,  54,  56 ;  Har- 
wood  V.  Benton,  32  Vt.  24  ;  Code  Nap.,  Art.  694  ;  ante,  sect.  1,  pi.  21 ;  M'Carty 
V.  Kitchenman,  47  Penn.  243  ;  Evans  v.  Dana,  7  R.  I.  310. 

'^  White  V.  Crawford,  10  Mass.  183,  188. 

8  Durel  y.  Boisblanc,  1  La.  Ann.  407. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  73 

by  the  necessity,  but  becomes  permanently  appurtenant  to 
the  principal  estate  by  the  force  and  effect  of  the  deed  it- 
self. 

27.  The  case  of  Elliott  v.  Rhett  was  that  of  a  rice-swamp, 
in  which  ditches  regulating  the  flooding  and  draining  of 
the  same  had  been  dug  and  were  in  use,  and  the  same  was 
sold  in  separate  parcels.  The  court  say :  "  Those 
*benefits  or  inconveniences  which,  according  to  the  [*46] 
scheme  of  culture  that  was  adopted  by  the  owner  of 
the  whole  body  of  land,  were  enjoyed  or  suffered  by  a  par- 
cel thereof  that  he  has  sold,  provided  they  arc  of  an  uninter- 
mitting  character,  and  are  shown  by  external  works,  pass 
with  the  parcel  as  necessary  incidents  of  the  land.  They 
are  like  the  natural  easements  of  running  water  and  sup- 
porting soil."  Accordingly  it  was  held,  that  if,  when  con- 
veyed in  parcels,  an  artificial  embankment  upon  one  parcel 
regulated  tlie  flow  of  the  water,  and  prevented  its  flooding 
other  parts,  it  would  be  regarded  like  a  natural  embank- 
ment. And  a  temporary  break  in  the  same,  existing  at  the 
time  of  the  conveyance,  would  make  no  difference,  unless 
the  owner  had  thereby  introduced  and  adopted  a  new  and 
permanent  system  of  management  of  the  estate,  or  an  aban- 
donment, at  least,  of  the  former  one.  The  court  add  :  "  The 
natural  easement,  if  any  existed,  was  once  superseded  by 
the  disposition  of  the  owner  of  the  two  tenements ;  the  arti- 
ficial easement  which  he  created,  whatever  may  have  been 
its  extent,  existed  at  the  time  of  the  sale,  and  is  in  no 
respect  entitled  to  less  consideration  than  if  it  existed  by 
nature."  ^ 

A  recent  case  in  New  York  was  decided  in  accordance 
with  the  general  doctrine  above  stated,  though  the  facts 
were  not  identical  with  those  of  the  cases  cited.  In  that 
case  a  man  died  having  several  lots  of  land  with  buildings 
thereon  in  the  city,  situate  at  the  intersection  of  D.  and  E. 
streets,  three  fronting  on  D.  Street,  running  back  to  an  alley 

1  Elliott  V.  Rliett,  5  Rich.  405,  415,  419. 


74  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [.[Ch.  I. 

which  runs  from  E.  Street  along  in  the  rear  of  them  all,  and 
along  the  side  of  the  lot  which  fronted  on  E.  Street.  This 
alley  had  hecn  used  for  the  accommodation  of  these  front  lots 
on  D.  and  E.  streets  for  forty  years,  by  the  owner  of  tlie  entire 

estate.  After  his  death  his  heirs  conveyed  one  of  the 
[*47]  lots  on  D.  Street,  "  together  with  all  tenements,  *here- 

ditaments  and  appurtenances  thereto  belonging,"  and 
described  it  by  a  line  running  so  and  so,  "  to  the  southerly 
side  of  an  alley-way,"  and  "  thence  along  the  said  alley-way," 
so  many  feet.  In  their  deed  of  the  estate  on  E.  Street,  the 
alley  is  excluded  by  the  boundaries  and  description  of  the 
premises,  though  no  reference  is  made  to  it  in  the  deed. 
Without  specifying  the  terms  of  the  deeds  of  the  other  parcels, 
the  question  was  whether  the  right  of  way  through  and  over 
this  alley  from  E.  Street  to  the  first-mentioned  lot  was 
conveyed.  It  was  held  that  it  could  not  pass  under  the  terra 
"  appurtenances,"  for  the  owner  could  not  be  said  to  have  a 
right  of  way  over  his  own  land  appurtenant  to  another  parcel 
of  his  own  land.  But  it  having  been  in  open  use  for  the 
accommodation  of  the  lot  at  the  time  of  its  conveyance,  it 
was  held  that  it  passed  as  incident  to  the  grant  of  the  princi- 
pal estate.  "  It  is,"  say  the  court,  "  a  general  rule  that, 
upon  a  conveyance  of  land,  whatever  is  in  use  for  it  as  an 
incident  or  appurtenance  passes  with  it.  The  law  gives  such 
a  construction  to  the  conveyance,  in  view  of  what  is  thus 
used  for  the  land  as  an  incident  or  appurtenance,  that  the 
latter  is  included  in  it.  Whether  a  right  of  way  or  other 
easement  is  embraced  in  a  deed,  is  always  a  question  of  con- 
struction of  the  deed,  having  reference  to  its  terms,  and  the 
practical  incidents  belonging  to  the  grantor  of  the  land  at 
the  time  of  the  conveyance." 

It  will  be  perceived  that  the  easement  in  this  case  was  not 
spoken  of  as  .one  of  necessity.  The  principal  estate  fronted 
upon  a  pul)lic  street,  and  was  therefore  accessible  otherwise 
than  by  this  alley.  The  existence  of  a  known  and  continuous 
use  of  the  thing  claimed  in  connection  with  the  thing  granted, 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  75 

at  and  prior  to  the  time  of  the  grant  made,  raises  the  impli- 
cation of  an  intent  to  embrace  it  in  j.hc  grant. ^ 

In  accordance  with  this  principle,  where  one  sold  lots 
fronting  upon  an  open  space  which  had  once  been  occupied 
by  a  railroad,  but,  afterwards,  upon  a  surrender  of  that, 
as  a  hi<j;liway,  it  was  held  that  the  use  of  the  highway  as  a 
means  of  access  to  these  lots  became  annexed  to  them  by 
the  grant,  and  could  not  be  defeated  by  the  grantor,  as 
owner  of  the  soil  of  the  higliway,  upon  the  same  being  dis- 
continued, since  the  grantor  could  not  take  away  what  he 
had  once  granted  by  force  of  his  deed.^ 

So  where  the  owner  of  a  block  or  square  of  city  land  made 
partition  thereof,  by   deeds,  among   several  persons, 
*and  in  each  deed  bounded  the  lot  by  an  alley  running  [*48] 
through  the  block,  each  proprietor  of  a  lot  became 
entitled  to  a  private  way  in  the  alley .^ 

28.  The  recent  case  of  Lampman  v.  Milks  presents  an 
elaborate  examination  and  discussion  of  the  effect  of  granting 
an  estate  with  which  the  grantor  had  been  accustomed  to  use 
certain  privileges  in  the  nature  of  easements,  though  not 
naturally  belonging  to  them,  nor  properly  appurtenant  to  the 
same,  nor  granted  by  deed,  with  the  principal  estate,  in 
express  terms. 

C,  owning  forty  acres  of  land  through  which  a  natural 
watercourse  ran,  flooding  half  an  acre  of  the  same,  changed 
the  natural  course  of  the  stream  by  an  artificial  channel 
which  he  dug,  leaving  this  half-acre  thereby  dry  and  fit  for  a 
building  lot.  After  the  water  had  flowed  in  tliis  cliannel  for 
several  months,  he  sold  the  half-acre  to  tlie  plaintiff,  and 
continued  for  near  ten  years  to  own  and  occupy  the  remain- 
der of  the  land.  He  then  sold  it  to  the  defendant,  who  soon 
after  stopped  the  artificial  channel,  and  diverted  the  stream 
into  its  original  course.  In  an  action  for  the  injury  thereby 
occasioned,  the  question  arose  whether  the  purchaser  of  the 

1  Hutteineier  v.  Alhro,  2  Bosw.  546  ;  s.  c,  18  N.  Y.  48. 

2  Plitt  V.  Cox,  43  Penn.  488,  3  Q.^^-Hn  v.  Paul,  1 1  Mo.  32.        j 


76  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

remainder  of  the  forty  acres  took  it  as  it  was  when  granted 
to  him,  or  took  it  with  a  right  to  have  the  natural  flow  of  the 
stream  restored  to  its  original  watercourse  ;  or,  in  the  lan- 
guage of  the  court,  "  Whether  an  owner  who,  l)y  such  arti- 
ficial arrangements  of  the  material  properties  of  his  estate, 
has  added  to  the  advantages  and  enhanced  the  valup  of  one 
portion,  can,  after  selling  that  portion  with  those  advantages 
openly  and  visibly  attached,  voluntarily  break  up  the  arrange- 
ment, and  thus  destroy  or  materially  diminish  the  value  of 
the  portion  sold  ?  " 

So  long  as  both  parts  belonged  to  the  same  owner,  there 

could  be  no  easement  in  favor  of  one  part  or  servitude 
[*49]   upon  *another.      But  the  doctrine  of  the  court  was, 

that  when  the  owner  of  two  tenements  sells  one  of 
them,  or  the  owner  of  an  entire  estate  sells  a  portion  of  the 
same,  the  purchaser  takes  the  tenement,  or  the  portion  sold, 
with  all  the  benefits  and  burdens  which  appear,  at  the  time 
of  sale,  to  belong  to  it,  as  between  it  and  the  property  which 
the  vendor  retains.  Nor  is  this  a  rule  in  favor  of  purchasers 
alone ;  and  if,  instead  of  a  benefit  conferred,  a  burden  be 
imposed  upon  the  portion  sold,  the  purchaser,  provided  the 
marks  of  the  burden  be  open  and  visible,  takes  the  property 
with  the  servitude  upon  it.  The  parties  are  presumed  to 
contract  in  reference  to  the  condition  of  the  property  at 
the  time  of  the  sale.  The  court,  accordingly,  held  that 
the  purchaser,  in  this  case,  took  his  estate  discharged  of 
the  original  servitude  of  the  overflow  by  the  waters  of  the 
stream. 

In  the  course  of  his  opinion,  the  judge  refers  to  and  re- 
views several  of  the  earlier  and  later  leading  cases,  in  which 
the  questions  above  suggested  were  more  or  less  directly 
considered.  Among  them  was  William  Copie's  case,^  where 
one  having  two  tenements,  and  a  gutter  from  one  of  them 
ran  over  or  across  the  other,  sold  one  tenement  to  one  and 

1  Copie's  case,  Year  B.  1 1  lien.  VII.  25 ;  Dodd  v.  Biireliell,  1  II.  &  Colt,  121, 
per  Martin  B. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY    GRANT.  77 

the  other  to  another  ;  and  it  was  held  that  the  easement 
and  servitude  of  the  gutter  passed  with  the  respective  estates 
by  the  form  of  the  grant.  He  also  cited  the  case  of  Nich- 
olas V.  Chamberlain,  where  the  owner  of  an  estate  con- 
structed an  aqueduct  from  a  spring  on  the  same  to  the 
dwelling-house  standing  thereon,  and  then  granted  the  dwell- 
ing-house. It  was  held  to  carry  with  it  the  easement  of  the 
aqueduct. 1  Also  the  cases  ^  which  are  found  more  at  length 
in  another  part  of  this  work,  remarking  that  neither  of  these 
came  within  that  class  of  grants  where  easements  have 
been  held  to  pass  under  broad  and  *comprehensive  [*50] 
terms,  such  as  "  a  mill,"  "  a  messuage,"  "  a  farm," 
and  the  like,  under  which  the  same  were  virtually  included 
as  a  part  of  the  thing  thereby  described,  as  has  already  been 
explained.^ 

29.  The  court,  in  the  principal  case  above  cited,  in  order 
to  carry  out  their  illustration  of  the  circumstances  under 
which  an  easement  will  pass  by  a  grant  of  the  estate  with 
which  it  is  to  be  enjoyed,  state  the  case  of  one  owning  a 
dwelling-house  opening  upon  a  vacant  piece  of  land  belong- 
ing to  him,  over  which  it  receives  light  and  air.  If  he  con- 
veys the  house  by  itself,  neither  he  nor  his  grantee  may  after- 
wards build  upon  the  vacant  lot  so  as  to  obstruct  the  windows 
of  the  house  ;  and  they  refer  to  Palmer  v.  Fletcher,'*  Riviere 
V.  Bowers,'^  Compton  v.  Richards,^  Coutts  v.  Gorham,"  and 
Story  V.  Odin,^  which  will  be  again  referred  to  in  connection 
with  easements  of  light  and  air.^ 

1  Nicholas  v.  Chamberlain,  Cro.  Jac.  121. 

2  Robins  v.  Barnes,  Hob.  131  ;  United  States  v.  Appleton,  1  Sumn.  492 ;  New- 
Ipswich  W.  L.  Factory  v.  Batchekler,  3  N.  H.  190 ;  Dunklee  v.  Wilton  R.  R.,  4 
Fost.  489. 

^  Lampman  v.  Milks,  21  N.  Y.  505.  See  White  v.  Chapin.  Allen,  not  yet 
reported.     Post,  p.  129. 

*  Palmer  v.  Fletcher,  1  Lev.  122. 

^  Riviere  v.  Bowers,  Ry.  &  M.  24. 

®  Compton  V.  Richards,  1  Price,  27. 

■^  Coutts  V.  Gorham,  1  Mood.  &  M.  396. 

^  Story  V.  Odin,  12  Mass.  157.  See  also  Swansborough  v.  Coventry,  9  Bing. 
305. 

9  Sec  White  v.  Bass,  7  H.  &  Norm.  722. 


78  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cir.  I. 

30.  The  court  also  refer  to  anotlier  class  of  easements, 
by  way  of  illustration,  which  are  treated  of  in  this  work, 
and  that  is  the  right  which  one  man  has,  under  certain  cir- 
cumstances, to  a  support  of  his  dwelling-house  by  the  land 
of  another,  or  by  the  walls  of  an  adjoining  tenement.  Thus, 
for  instance,  if  one  owning  a  dwelling-house  with  the  adjoin- 
ing land  convey  the  house,  neither  he  nor  his  assigns  could 
lawfully  excavate  the  adjoining  land,  so  near  to  the  founda- 
tion of  the  house  as  essentially  to  impair  its  security,  as  was 
settled  in  the  case  of  Lasala  v.  Holbrook.^ 

So  if  the  owner  of  two  lots  erect  a  house  upon  one  whose 
eaves  discharge  the  water  upon  the  other,  and  sell  the 

[*51]  house  *in  that  state,  the  right  thus  to  discharge  the 
water  passes  with  the  house  as  an  easement,  and  a 

servitude  upon  the  adjacent  lot.^ 

31.  The  case  of  Thayer  v.  Payne  ^  was  also  cited  in  the 
same  case.  But  it  seems  to  rest  rather  upon  the  doctrine, 
that  what  is  necessary  to  enjoy  a  thing  granted  passes  by  a 
grant  of  the  principal  thing,  than  that  of  an  implied  ease- 
ment, growing  out  of  the  principal  estate,  having  been  used 
in  a  particular  manner  by  the  grantor.  The  subject  of  in- 
quiry in  that  case  was  a  drain  connected  with  two  tenements, 
one  of  which  had  been  granted  to  the  defendant  by  the  plain- 
tiff. The  drain  led  from  the  defendant's  tenement  through 
the  plaintiff's,  and  was  held  to  pass,  as  an  easement,  with 
the  defendant's  tenement,  although  not  granted  in  terms, 
because  the  jury  found  it  necessary  to  the  enjoyment  of  the 
same.  Had  it  been  otherwise,  though  existing  at  the  time 
of  the  conveyance,  it  would  not  have  passed.* 

32.  The  general  subject  may  be  further  illustrated  by  the 
case  of  Hinchliffe  v.  Kinnoul,  where  there  had  been  a  long 

1  Lasala  r.  llolln'ook,  4  Paige,  169 ;  post,  chap.  4  sect.  1,  pL  7. 

-  Alexander  v.  Boghel,  4  La.  312. 

8  Thayer  v.  Payne,  2  Ciish.  327.  See  also  Brakcly  v.  Sliarj),  1  Stockt.  9,  17  ; 
Johnson  v.  Jordan,  2  Mete.  234,  240 ;  Ferguson  v.  Witsell,  5  llich.  280 ;  Pycr 
V.  Carter,  1  Ilurlst.  &  N.  910. 

*  Ante,  p.  G7. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY    GRANT.  79 

lease  of  land,  during  which  houses  had  been  erected  thereon 
by  the  lessee  or  his  assigns,  and  a  sub-lessee  of  one  of  the 
tenements  had  made  use  of  a  passage-way  along  the  side  of 
it,  through  which  a  "  coal-shoot "  had  been  used  by  him  for 
supplying  the  house  with  coal,  and  water-pipes  had  been  laid 
along  this  passage-way  for  supplying  the  house  with  water, 
and  in  making  repairs  to  the  house  this  passage-way  had  been 
used  as  a  means  of  access  thereto.  A  few  years  before  the 
expiration  of  the  general  lease  of  the  premises,  the  reversion- 
er of  the  entire  estate  made  a  reversionary  lease  of  the  tene- 
ment above  mentioned,  in  which  he  described  it  with 
great  exactness,  and  added,  "  together  with  *all  and  [*523 
singular  the  appurtenances  unto  the  said  piece  or 
parcel  of  ground,  messuage,  or  tenement,  erections,  build- 
ings, and  premises  belonging  or  anywise  appertaining."  The 
question  was,  if  the  right  of  passage,  &c.  passed  under  this 
lease,  inasmuch  as  they  never  could  have  become  appurte- 
nant as  against  the  reversioner,  and  he  only  granted  such  es- 
tate as  he  had.  It  was  held,  that,  being  in  existence,  and  ne- 
cessary to  the  enjoyment  of  the  leased  premises,  they  passed 
therewith  as  necessarily  incident  thereto,  although  not  spe- 
cially named  in  the  lease.  The  court,  however,  waived  the 
question  whether  these  were  properly  appurtenant  to  the 
thing  granted,  and  held  that  it  was  enough  that  the  lease 
was  made  by  a  party  who  was  entitled  to  the  reversion  both 
of  the  house  and  the  soil  of  the  passage-way,  and  had  a  right 
to  grant  or  continue  the  existence  of  such  right  at  the  time 
the  lease  was  to  come  into  operation  and  effect,  and  tlie  words 
of  the  lease  would  admit  of  that  construction.^ 

33.  The  case  of  Pheysey  v.  Vicary  may  also  be  referred 
to  as  a  further  illustration  of  what  passes  by  way  of  easement 
upon  the  severance  of  one  or  more  tenements.  In  that  case 
the  owner  of  two  dwelling-houses,  standing  near  each  otlier, 

1  HinchlifFe  v.  Kinnoul,  5  Bing.  N.  C.  1.  See  post,  chap.  5,  sect.  1,  pi.  7, 
where  this  case  is  again  referred  to,  upon  the  question  of  the  effect  of  unity  of 
title  of  two  estates  upon  an  existing  easement.  See  also  Osborn  v.  Wise,  7 
Carr.  &P.  751. 


80  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

devised  one  to  the  plaintiff,  and  the  other,  "  and  the  appur- 
tenances thereto  belonging,"  to  the  defendant.  There  was  a 
wrought  track  from  the  street  along  in  front  of  the  defend- 
ant's house  continued  on  in  front  of  the  plaintiff's,  which, 
passing  around  a  circular  plat,  returned  into  the  street  over 
the  same  track  as  that  by  which  it  commenced ;  and  this 
track  had  been  used  as  the  means  of  access  to  the  two 
houses,  although  there  was  a  means  of  access  from  the  street 

to  each  of  the  houses  from  the  rear  of  the  land  on 
[*53]   which  the  houses  stood.     Tlie  question  was,  *whether 

the  plaintiff  had  a  right  to  use  this  wrought  track  as 
a  means  of  access  to  his  house.  It  was  claimed,  not  as  a 
way  of  necessity,  but  as  appurtenant  to  the  estate  devised 
to  him  by  reason  of  having  been  thus  used. 

It  was  contended  that  the  way  in  this  case  came  within 
the  principle  of  a  destination  du  pere  de  famille  of  the  civil 
law,  which  Pardessus  defines,  "  La  disposition  ou  I'arrange- 
ment  que  le  proprietaire  de  plusieurs  fonds  a  fait  pour  leur 
usage  respectif "  ;  and  which,  by  the  Code  Napoleon,  "  has 
the  effect  of  writing  in  regard  of  continual  and  apparent  ser- 
vitudes." The  Code  of  Louisiana  declares  such  use  as  the 
owner  has  intentionally  established  on  a  particular  part  of 
his  property  in  favor  of  another  part,  to  be  equal  to  a  title 
with  respect  to  perpetual  and  apparent  servitudes  thereon. 
But  the  court,  Parke  B.,  held  that  "  the  way  can  only  pass 
in  one  of  two  modes,  viz.  either  under  the  word  '  appurte- 
nances '  in  the  will,  or  as  of  necessity.  A  right  of  way  to 
one  of  two  houses,  though  of  necessity,  may  be  extinguished 
by  unity  of  ownership  or  possession,  though,  when  either 
house  is  regranted  singly,  it  would  pass  by  implication  as 
necessarily  incident  to  that  grant."  That  all  that  passed  in 
this  case,  under  the  term  appurtenant,  was  a  way  of  neces- 
sity, which  does  not  come  under  the  class  of  continuous  or 
permanent  easements,  but  was  one  to  be  exercised  only  from 
time  to  time,  and  only  while  the  necessity  continued.  "  If 
it  is  necessary  to  the  safety  of  a  house  that  water  should  flow 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  81 

down  a  drain,  the  right  of  watercourse  through  it  is  reserved 
by  implication  in  every  grant  of  the  house."  ^ 

But  if  the  drain  of  one  house  be  so  badly  construct- 
ed as  *to  be  a  nuisance  to  the  house  through  which  it  [*54] 
passes,  and  the  owner  of  both  lease  the  latter,  retaining 
the  former,  he  will  be  liable  for  suffering  it  to  remain  so, 
though  in  the  same  condition  as  when  leased.  The  law  does 
not,  in  such  case,  reserve  to  him  anything  more  than  a 
reasonable  use  of  such  drain.'^ 

34.  In  determining  whether  a  right  like  that  of  a  drain  or 
other  easement  shall  pass,  by  implication,  with  premises 
under  a  grant,  though  not  mentioned,  much  stress  is  laid 
upon  its  being  of  an  apparent  and  continuous  character, 
and  in  one  case  the  objection  was  taken,  that,  when  the  pur- 
chaser of  one  of  two  tenements  acquired  his  title,  he  did 
not  know  of  the  existence  of  the  drain,  the  same  being 
under  ground.  But  the  court  held  that  he  must  have 
known  that  the  tenement  claiming  the  drain  must  have  some 
drainage,  and  he  was  therefore  bound  to  examine  and  as- 
certain its  existence,  and  that  no  actually  "apparent  signs" 
were  necessary  to  charge  him  with  notice  of  the  same.^ 

But  still,  in  order  that  an  easement  should  thus  pass,  by 
implication,  under  the  grant  of  an  estate,  it  must  be  one  that 
is  apparent  as  well  as  continuous,  and  such  as  is  indicated 
by  the  condition  of  the  premises  at  the  time  of  the  grant. 
And  where  there  were  skeletons  of  buildings  standing  to- 
gether, with  openings  in  them,  but  apparently  uncertain 
whether  for  doors  or  windows,  a  right  of  a  particular  way  as 
belonging  to  the  premises  would  not  pass  as  one  of  its  appur- 
tenances by  a  conveyance  of  one  of  the  houses  in  that  state.* 

1  See  ante,  sect.  1,  pi.  21  ;  Pheyscy  v.  Vicary,  16  Mees.  &  W.  484  ;  White  v. 
Leeson,  5  Hurlst.  &  N.  .53  ;  Pardessus,  Traite  des  Servitudes,  430,  431  ;  Glave 
V.  Harding,  3  Hurlst.  &  N.,  Am.  ed.  937  ;  Code  Nap.,  Art.  692 ;  La.  Civ.  Code, 
Art.  763  ;  ante,  p.  *44. 

2  Alston  V.  Grant,  3  Ellis  &  B.  128. 

3  Pyer  v.  Carter,  1  Hurlst.  &  N.  922. 

*  Glave  V.  Harding,  3  Hurlst.  &  An.,  Am.  ed.  937,  945. 
6 


82  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Ch.  I. 

35.  This  subject  is  more  fully  examined  in  Johnson  v. 
Jordan,  already  cited.     That  was  also  a  case  of  a  drain  from 
one  tenement  through  another,  which  had  been  used 
[*55]  by  the  *owner  of  both  tenements  when  they  belonged 
to  one  and  the  same  person.     So  long  as  he  owned  the 
two,  he  could  convey  the  one  with  or  without  the  encumbrance 
or  advantage  of  the  drain,  as  he  might  elect,  depending,  of 
course,  upon  his  intent  as  expressed  in  his  deed.     In  the  ab- 
sence of  anything  relative  to  the  drain  in  a  deed  of  one  of  the 
parcels,  the  question  was,  what  construction  did  the  law  give 
to  such  deed  in  respect  to  such  drain?    An  important  circum- 
stance appeared  in  the  examination  of  the  case,  which  was, 
that  the  slope  of  the  ground  was  such  as  not  to  require  that 
the  drain  from  the  one  tenement  should  run  through  the 
other,  but  admitted  of  constructing  a  new  drain  for  the  upper 
tenement,  at  no  disproportionate  expense,  without  interfering 
with  the  lower  one,  although  the  drain  in  its  present  form 
was  a  convenient  one,  and  had  been  in  use  before  the  con- 
veyance.    The  court  held  that  such  rights  of  water-way  or 
drain  as  would  be  easements  under  the  ownership  of  the  two 
estates  by  different  persons,  and  were  necessary  to  the  en- 
joyment of  the  thing  granted,  and  had  been  previously  used 
with  the  estate,  would  pass  as  appurtenant  to  the  same.     If, 
therefore,  one  owning  two  tenements  have  a  drain  from  the 
one  over  or  through  the  other,  and  he  sell  the  first  with  its 
appurtenances,  it  would  pass  the  right  of  drain  as  being  de 
facto  annexed  as  an  appurtenance.     But  if  he  were  to  con- 
vey the  lower  tenement,  making  no  mention  of  the  drain  in 
his  deed,  he  would  not  be  considered  as  reserving  a  right  of 
drain  from  his  remaining  tenement  through  the  one  granted. 
In  that  case,  however,  the  owners  of  the  several  tenements 
acquired  their  titles  to  the  same  by  simultaneous  convey- 
ances from  the  original  owner,  and  it  was  held  that  they 
were  to  be  considered  in  the  light  of  tenants  in  common, 
who  had  made  partition  of  their  estates,  when  each  party 
takes  his  estate  with  the  rights,  privileges,  and  incidents  in- 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  83 

herently  attached  to  it,  rather  than  as  grantors  and  grantees. 
It  was  held,  that,  as  no  mention  was  made  of  tlie 
drain  in  the  deed,  and  as  it  was  not  *  necessary  to  the  [*5G] 
enjoyment  of  the  upper  tenement,  tlie  right  to  use  it 
did  not  pass  by  the  conveyance.^ 

3G,  Thus  where  the  owner  of  a  parcel  of  land  made  a 
ditch  therein,  whereby  the  upper  part  of  it  was  drained,  and 
subsequently  conveyed  this  part  of  it  with  a  part  of  the  ditch, 
retaining  the  part  with  the  ditch  through  which  the  part  so 
conveyed  was  drained,  it  was  held  that  he  could  not  after- 
wards stop  the  ditch  so  as  to  prevent  the  water  being  drained 
from  the  vendee's  land.^ 

So  where  one  owning  two  estates  near  each  other,  through 
one  of  which  flowed  a  stream  of  water,  leased  the  other  par- 
cel, and  authorized  the  tenant  to  divert  the  water  from  the 
one  on  to  and  through  the  other,  and  while  in  that  condition 
sold  the  latter  with  all  watercourses  and  appurtenances, 
it  was  held  that  he  was  not,  after  such  sale,  at  liberty  to  stop 
the  water  from  flowing  through  the  granted  premises,  and 
thereby  restore  the  stream  to  its  original  state.^ 

It  is  stated  in  Jenkins's  Centuries  :  "  A  way  is  extin- 
guished by  unity  of  possession,  and  is  revivable  afterwards, 
upon  a  descent  to  two  daughters,  where  the  land  through 
which,  &c.  is  allotted  to  one  ;  and  the  other  land,  to  which 
the  way  belonged,  is  allotted  to  the  other  sister  ;  and  this 
allotment,  without  specialty  to  have  the  way  anciently  used, 
is  sufficient  to  revive  it."  * 

One  owning  lands  upon  both  sides  of  a  stream  raised  a 
dike  along  one  bank  to  prevent  the  water  from  overflowing 
the  land  on  that  side,  the  effect  of  which  was  to  throw  more 
water  than  had  before  been  done  upon  the  opposite  bank. 

1  Johnson  v.  Jordan,  2  Mete.  234.  See  Nichols  v.  Luce,  24  Pick.  102;  God- 
dard  v.  Dakin,  10  Mete.  94  ;  New  Ipswich  W.  L.  Factory  v.  Batehelder,  3  N.  H. 
190;  Nicholas  v.  Chamberlain,  Cro.  Jac.  121  ;  ante,  p.  66. 

-  Shaw  V.  Ethcridge,  3  Jones,  No.  C.  300. 

3  Wardle  v.  Brocklehurst,  1  E.  &  Ellis,  1058. 

*  Jenk.,  case  37.     See  also  James  r.  Plant,  4  Adolph.  &  E.  749. 


84  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

After  his  death  his  estate  was  divided  among  his  heirs,  one 
heir  taking  the  land  upon  one  side,  and  another  that  upon 
the  other  side  of  the  stream.  The  latter  heir  then  erected 
a  dike  upon  his  side  of  the  stream,  the  effect  of  which  was 
to  protect  his  own  land,  and  throw  an  increased  amount  of 
water  upon  the  opposite  bank,  which  had  in  the  mean  time 
been  conveyed  by  the  first  heir  to  a  stranger.  The  court 
held  that  the  heirs  took  the  estate  in  the  condition  in  which 
the  same  was  at  the  father's  death,  subject,  of  course,  to  the 
dike  which  he  had  constructed,  in  the  same  way  as  if  it  had 

been  a  natural  one,  and  therefore  that  the  new  dike 
[*57]  was  a  *nuisance  to  the  land  upon  the  opposite  side  of 

the  stream.  The  same  would  have  been  the  law  if 
the  ancestor  had  conveyed  the  land  with  the  dike  upon  it ; 
he  would  not  have  had  a  right  to  erect  one  on  his  own  side 
of  the  stream.^ 

So  where  the  estate  of  a  deceased  was  divided  between  two 
heirs  by  metes  and  bounds.  Upon  one  of  the  parts  was  a 
mill,  but  the  dividing  line  of  the  estates  cut  off  a  part  of  the 
dam,  leaving  it  within  the  limits  of  the  other  part  of  the 
estate.  It  was  held  that  the  owner  of  the  mill  had  a 
right  to  keep  up  and  maintain  that  part  of  the  dam  which 
was  cut  off  by  the  dividing  line,  the  same  being  neces- 
sary to  the  enjoyn^ent  of  the  mill  which  had  been  set  to 
him.^ 

37.  The  case  of  Brakely  v.  Sharp  was  one  where  this  doc- 
trine of  an  easement  passing,  or  otherwise,  with  part  of  an 
estate  upon  the  division  of  a  heritage,  was  twice  considered, 
and  may  be  regarded  as  a  leading  one  upon  the  subject.  In 
that  case,  the  intestate  owned  two  farms  at  his  death,  with  a 
house  on  each,  and  had  constructed  an  aqueduct  from  a 
spring  upon  one  of  them  to  both  these  houses.  Upon  his 
death,  the  farm  upon  which  was  the  spring,  was  set  to  the 

1  Burwcll  V.  Ilobson,  12  Gratt.  322. 

2  Kilgour  V.  Ashcom,  5  Harr.  &  J.  62  ;  Tyrringliam's  case,  4  Rep.  36.  Sey- 
mour V.  Lewis,  13  N.  J.  439  ;  Elliott  v  Sallce,  14  Oliio  St.  10. 


Sect.  8.]  ACQUIRING   EASEMENTS   BY   GRANT.  85 

widow  and  one  lieir,  and  the  other  farm  to  the  other  heir. 
The  question  arose  as  to  the  effect  of  this  partition  upon  the 
right  which  the  owner  of  the  second  farm  had  to  share,  in 
connection  with  his  house,  in  the  benefit  of  this  aqueduct. 
The  Chancellor  held,  that  if  the  ancestor,  while  owning  both 
farms,  had  conveyed  to  a  stranger  the  one  which  was  set  to 
the  widow,  he  would  have  lost  all  benefit  of  the  aqueduct  as 
an  easement,  if  he  had  not  expressly  reserved  it  in  his  deed. 
It  would  have  been  derogating  from  his  own  grant  to  have 
claimed  it,  unless  expressly  reserved.  In  this  respect  there 
was  an  essential  difference  between  a  natural  and  an  arti- 
ficial watercourse,  as  the  former,  when  it  passes,  passes  as 
a  right  ex  natura ;  and  for  this  the  Chancellor  cited 
*Hazard  v.  Robinson.  But  in  the  present  case  the  [*58] 
widow  and  heir  did  not  stand  in  the  light  of  purchasers 
from  the  ancestor.  All  the  heirs  came  in  with  equal  rights, 
and  no  preference  arose  from  mere  priority  of  assignment. 
It  became,  therefore,  a  question,  whether  this  aqueduct  was 
necessary  for  the  enjoyment  of  the  farm  set  to  the  other  heir. 
If  it  was,  it  would  pass  like  a  right  of  way  of  necessity,  and 
as  it  appeared  that  it  was  the  only  way  by  which  the  house 
was  supplied  with  water,  it  was  held  that  it  passed  with  the 
farm  with  which  it  had  been  enjoy ed.^ 

38.  Where  an  easement  is  secured  to  a  dominant  estate, 
and  is  designed  to  benefit  the  same  in  whosever  hands  it  may 
be,  it  will,  as  a  general  proposition,  enure  to  the  benefit  of 
the  owner  of  any  part  of  the  same  into  which  it  may  be 
divided,  provided,  the  burden  upon  the  servient  estate  in- 
tended to  be  created  is  not  thereby  enhanced.  Thus,  where 
one  sold  a  parcel  of  land  for  building  purposes,  which 
opened  upon  a  vacant  area  which  was  to  be  kept  open  for 
air  and  prospect,  the  plaintiff,  having  become  the  owner  of 
a  part  of  this  estate,  was  held  entitled  to  an  injunction 
against  the  owner  of  the  open  area  to  prevent  his  building 
thereon,  although  he  held  under  a  grant  from  the  original 

1  Brakely  v.  Sharp,  2  Stockt.  20G ;  Hazard  v.  Kobinson,  5  Mason,  272. 


86  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cu.  I. 

grantor,  and  the  original  grantee  had  consented  to  his  build- 
ing upon  the  vacant  land.^ 

And  it  is  often  stated,  that  a  way  appurtenant  to  a  close  is 
appurtenant  to  every  parcel  into  which  this  close  may  be 
divided.  But  it  should  be  limited,  however,  it  would  seem, 
so  that  no  additional  burden  is  thereby  created  upon  the 

servient  estate.^ 
[*59]  *Thus,  in  the  case  of  Underwood  v.  Carney,  a  grant- 
or owned  a  passage-way  with  an  estate  upon  the  east 
and  one  upon  the  west  side  of  it.  He  sold  the  estate  on  the 
east  side  with  a  right  of  way  over  this  passage-way,  reserving 
a  right  to  erect  a  fence  along  the  west  side  of  it  which  should ' 
not  narrow  it  more  than  so  many  inches.  He  afterwards 
divided  his  estate  upon  the  west  side  by  conveying  parts 
of  it  to  two  different  individuals,  and  the  question  was 
whether  each  of  these  had  a  right  of  way  over  this  pas- 
sage-way. The  court  held  that  they  had,  that  the  right 
of  way  was  appurtenant  to  the  whole  and  to  every  part  of 
this  estate,  and  that  the  owner  of  each  part  took  it  with 
this  right  of  way  attached  to  it,  although  it  was  not  named 
in  the  deed.^ 

So  in  Watson  v.  Bioren,  where  the  parcel  granted  was  a 
lot  in  a  city,  ten  feet  in  width,  bounded  by  an  alley  three 
feet  wide,  and  the  grantee  divided  this  parcel  into  two,  the 
court  held  that  the  right  of  way  belonged  to  both  parcels : 
"  When  land  is  conveyed  with  a  right  to  the  grantee,  his 
heirs  and  assigns,  to  pass  over  other  land,  this  right  is  ap- 
purtenant to  all  and  every  part  of  the  land  so  conveyed,  and, 

1  Hills  V.  Miller,  3  Paige,  254,  257  ;  2  Washb.  Keal  Prop.  32  ;  3  Kent,  Comm. 
420;  Barrow  v.  Richard,  8  Paige,  351.  See  Maxwell  v.  East  River  Bank,  3 
Bosw.  124.  Brouwer  y.  Jones,  23  Barb.  IGO;  Gibert  ».  Peteler,  38  Barb.  513, 
514 ;  Easter  v.  L.  M.  R.  Road,  14  Ohio  St.  54 ;  post,  p.  *63. 

2  Whitney  v.  Lee,  1  Allen,  198  ;  Underwood  v.  Carney,  1  Cush.  285  ;  Watson 
V.  Bioren,  1  Serg.  &  R.  227  ;  Staple  v.  Ilcydon,  6  Mod.  1  ;  Codling  v.  John- 
son, 9  Biirncw.  &  C.  933  ;  Hills  v.  Miller,  3  Paige,  254  ;  post,  ehap.  2,  sect.  .% 
pi.  18. 

'  Underwood  v.  Carney,  1  Cush.  85. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  87 

consequently,  every  person  to  whom  any  part  is  so  conveyed 
is  to  enjoy  the  riglit  of  passage."  ^ 

But  this  doctrine  wouhl  seem  to  bo  limited  to  cases  where 
the  casement  annexed  to  the  land  was  a  general  one,  in- 
tended to  accommodate  one  part  of  the  granted  parcel  equally 
with  another,  and  not  to  be  enjoyed  with  some  particular 
part  of  it,  or  for  special  and  limited  purposes.  Thus,  where 
the  owner  of  a  public  house  near  a  river  had  a  right  of  pas- 
sage by  boats,  by  the  river,  for  himself  and  his  servants  to 
bring  corn  for  the  use  of  the  house,  and  brick,  tile,  and 
materials  for  repairing  the  same,  and  to  land  them  upon 
the  frontage  of  the  establishment,  it  was  held  that  no  oc- 
cupant of  this  frontage  could  claim  to  exercise  the 
*same  right  unless  he  was  also  occupant  of  the  public  [*60] 
house.^ 

39.  And  the  proposition  is  universally  true,  that  if  one 
acquires  a  right  of  way  to  one  lot  or  parcel  of  land,  he  can- 
not use  it  to  gain  access  first  to  that  parcel,  and  thence  over 
his  own  land  to  other  lands  belonging  to  him.  So  far  as  he 
should  use  it  for  access  to  or  accommodation  of  other  parcels 
than  the  specific  one  to  which  it  is  appurtenant,  he  would  be 
a  trespasser.'^  So  when  the  owner  of  a  well  granted  to  the 
owner  of  an  adjacent  estate  a  right  to  take  water  from  it, 
and  the  owner  of  the  latter  lot  conveyed  his  estate  to  the 
owner  of  another  estate  adjacent  to  his,  with  appurtenances, 
&c.,  it  was  held  that  the  latter  did  not  thereby  acquire  any 
right  to  take  water  for  the  use  of  the  estate  which  originally 
belonged  to  him  by  virtue  of  his  having  purchased  the  other 
estate.* 

1  Watson  r.  Bioren,  1  Scrg.  &  R.  227. 

2  Bower  v.  Hill,  2  Bing.  N.  C.  339.  See  Allan  v.  Gomme,  11  Adolph.  &  E. 
759  ;  So.  Metrop.  Cemetery  Co.  v.  Eden,  16  C.  B.  42  ;  post,  chap.  2,  sect.  3,  pi.  18  ; 
Lewis  V.  Carstairs,  6  Wliart.  193  ;  3  Toullicr,  Droit  Civil  Fran^ais,  496. 

^  Lawton  v.  Ward,  1  Ld.  Raym.  75  ;  Watson  i'.  Bioren,  1  Serg.  &  R.  227  ; 
Davenport  i\  Lamson,  21  Pick.  72;  Case  of  Private  Road,  1  Aslim.  424;  Jami- 
son y.  M'Credy,  5  Watts  &  S.  129,  140;  Viner,  Abr.  Chimin  Private,  A.  2; 
French  r.  Marstin,  4  Fost.  440,  451  ;  1  Rolle,  Abr.  391  ;  Ilowell  i-.  King,  1  Mod. 
190  ;  Kirkham  v.  Sharp,  1  Whart.  323  ;  Colchester  v.  Roberts,  4  Mees.  &  W.  769. 

*  Evans  v.  Dana,  7  R.  L  306. 


88  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

40.  the  effect  to  be  given  to  the  division  of  an  estate  to 
which  an  easement  has  attached,  is  provided  for  by  the  Civil 
Code  of  Louisiana.  And  it  was  held,  in  a  case  where  the 
owner  of  an  estate  divided  it  by  a  wall  which  he  erected  and 
in  which  a  window  was  inserted,  and  he  then  sold  the  sepa- 
rate parcels  in  this  condition,  that  the  easement  of  light 
attached  to  the  parcels,  so  that,  though  the  owner  of  one 
parcel  had  boarded  up  the  window  upon  his  side  of  the  wall, 
and  it  was  in  that  condition  when  the  defendant  bought  the 
other  parcel,  the  latter  was  justified  in  removing  these  boards 
in  order  to  enjoy  the  right  of  the  light. ^ 

41.  But  where  a  way,  for  instance,  is  created  in  favor  of 
an  estate  for  one  purpose,  or  in  reference  to  a  particular 
use  to  be  made  of  such  estate,  it  ceases  to  be  appurtenant,  if 
the  estate  is  essentially  changed  in  its  mode  of  occupation. 
Thus,  where  a  way  belonged  to  an  open  parcel  of  land  for 

the  use  of  it  as  an  open  parcel,  and  the  owner  of  the 
[*61]    same  *erected  a  cottage  thereon,  covering  the  entire 

space,  it  was  held  that  by  such  change  in  the  prem- 
ises the  right  of  way  was  extinguished.^  But  a  way  which 
has  been  gained  by  prescription  is  not  lost  by  its  ceasing 
to  be  an  important  right  to  the  owner .^ 

42.  Although  it  might,  perhaps,  be  difficult  to  embody  the 
leading  doctrines  of  the  foregoing  cases  into  any  general 
proposition,  it  would  seem  that,  in  case  of  a  division  of  an 
estate  consisting  of  two  or  more  heritages,  whether  an  ease 
or  convenience  which  may  have  been  used  in  favor  of  one, 
in  or  over  the  other,  by  the  common  owner  of  both,  shall 
become  attached  to  the  one  or  charged  upon  the  other,  in 
the  hands  of  separate  owners,  by  a  grant  of  one  or  both  of 
those  parts,  or  upon  a  partition  thereof,  must  depend,  where 
there  are  no  words  limiting  or  defining  what  is  intended  to 
be  embraced  in  such  deed  or  partition,  upon  whether  such 

1  La.  Civ.  Code,  Art.  768-765  ;  Lavilleheuvre  i'.  Cosgrove,  13  La.  Ann.  323. 

2  Allan  V.  Gommc,  11  Adolpli.  &  E.  759. 
8  Crounsc  v.  Wcmple,  29  N.  Y.  543. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  89 

easement  is  necessary  for  the  reasonable  enjoyment  of  the 
part  of  such  heritage  as  claims  it  as  an  appurtenance.  It 
must  be  reasonably  necessary  to  the  enjoyment  of  the  part 
which  claims  it,  and  where  that  is  not  the  case,  it  requires 
descriptive  words  of  grant  or  reservation  in  the  deed,  to 
create  an  easement  in  favor  of  one  part  of  a  heritage  over 
another. 

In  Archer  v.  Bennett,  there  was  a  mill  and  a  kiln  designed 
for  the  use  of  the  mill,  but  separate  buildings.  A  grant  of 
the  mill  with  its  appurtenances  was  made,  and  the  question 
was  if  the  kiln  passed.  It  was  held  that  it  did  not  pass  as 
an  appurtenant  to  the  mill,  being  in  itself  land.  But  if  it 
was  necessary  to  the  use  and  enjoyment  of  the  mill,  it  passed 
as  a  part  of  the  mill,  "  as  by  grant  of  a  messuage  the  con- 
duits and  water-pipes  pass  as  parcel  though  they  are  re- 
mote."^ 

43.  It  has  sometimes  been  attempted  to  create  an  ease- 
ment in  favor  of  a  dominant  estate  over  a  servient  one  by 
estoppel,  from  the  fact  of  the  owner  of  the  latter  standing 
by  and  witnessing  the  expenditure  of  money  by  the 
owner  *  of  the  former,  in  reference  to  an  enjoyment  [*62] 
of  what  would  be  an  important  easement  to  the  same, 
and  acquiescing  in  the  same  without  notice  or  objection. 
Questions  of  this  kind  have  arisen  in  cases  of  the  erection  of 
costly  dwelling-houses  whose  windows  open  upon  the  adjacent 
unoccupied  premises  of  another,  who  has  suffered  the  expenses 
of  such  structures  to  be  incurred  without  objection  or  notice 
of  any  intent  to  exercise  a  right  to  disturb  the  enjoyment  of 
the  same.  In  one  case  this  was  done  while  tlie  servient  es- 
tate was  in  the  possession  of  a  tenant  having  a  particular 
estate,  the  reversioner  being  cognizant  of  such  expenditure. 
The  court  say,  "  The  fullest  knowledge  with  entire,  but 
mere  acquiescence,  cannot  bind  a  party  who  has  no  means 
of  resistance."  And  the  court  go  further,  and  seem  to  cover 
the  whole  ground,  that  no  such  estoppel  can  be  set  up  in  fa- 

1  Archer  v.  Bennett,  I  Lev.  131. 


90       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

vor  of  the  dominant  estate.  "  There  may  appear  to  be  some 
hardship  in  holding  that  the  owner  of  a  close,  who  lias  stood 
by  without  notice  or  remonstrance  while  his  neighbor  has 
incurred  great  expense  in  building  upon  his  own  adjacent 
land,  should  be  at  liberty,  by  subsequent  erections,  to  darken 
the  windows,  and  so  destroy  the  comfort  of  such  building. 
Yet  there  can  be  no  doubt  of  his  right  to  do  so  at  any  time 
before  the  expiration  of  twenty  years  from  their  erection."  ^ 

But  the  ordinary  doctrine  of  estoppel  by  deed  applies  in 
case  of  a  grant  of  an  easement,  so  that  if  a  person  without 
title  profess  to  convey  an  estate,  or  to  grant  an  easement,  his 
conveyance  operates  by  way  of  estoppel,  if  at  a  subsequent 
period  he  acquires  the  fee,  and  the  subsequently  acquired 
estate  is  bound  thereby,  or,  as  it  is  termed,  the  newly  acquired 
estate  feeds  the  estoppel.^ 

And  where  the  owner  of  an  estate  has  stood  by  and 
[*63]  seen  *another  expend  money  upon  an  adjacent  estate, 
relying  upon  an  existing  right  of  easement  in  the 
first-mentioned  estate,  and  without  which  such  expenditure 
would  be  wholly  useless  and  wasted,  and  has  not  interposed 
to  forbid  or  prevent  it,  equity  has  enjoined  him  from  inter- 
rupting the  enjoyment  of  such  easement.  So  where  he  has 
by  parol  granted  a  right  to  such  easement  in  his  land,  upon 
the  faith  of  which  the  other  party  has  expended  moneys 
which  will  be  lost  and  valueless  if  the  right  to  enjoy  such 
easement  is  revoked,  equity  has  enjoined  the  owner  of  the 
first  estate  from  preventing  the  use  of  the  easement.^ 

44.  This  seems  a  proper  place  in  which  to  notice  a  class  of 
easements  which  may  be  called  equitable  because  chiefly 
within  the   cognizance  of  courts  of  equity,  to  which  brief 

1  Blancliard  v.  Bndp;e.s,  4  Adolph.  &  E.  176  ;  see  post,  chap.  5,  sect  7,  pi.  7. 

2  Per  Watson,  B.,  Kowbotham  v.  Wilson,  8  Ellis  &  B.  145,  cites  AVeale  v. 
Lower,  Poll.  54,  68;  Rawlyn's  case,  4  Rep.  52  a. 

3  Tud.  Lead.  Cas.  109;  Anonymous,  2  Eq.  Cas.  Abr.  522;  Short  v.  Taylor, 
Ibid. ;  2  Story,  E(|.  Jurisp.  .388  ;  Tarrant  v.  Terry,  1  Bay,  2,39  ;  Powell  v.  Thom- 
as, 6  Hare,  .300;  CiavcriTif^'s  case,  cited  in  last  case,  p.  304:  Williams  v.  Jersey, 
Craig  &  P.  91  ;  Devonshire  v.  Eglin,  14  Bcav.  530  ;  jjost,  chap.  3,  sect.  4,  pi.  23. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  91 

reference  lias  been  made,  ante,  pi.  38.  They  are  also  men- 
tioned in  other  parts  of  the  work.  But  the  number  and  im- 
portance of  the  cases  involving  such  interests  which  have 
recently  been  decided,  demand  a  more  direct  and  connected 
notice  of  the  present  state  of  the  law  upon  the  subject.  The 
principal  cases  noticed  in  the  first  edition  of  this  work  were 
Barrow  v.  Richards,  Hills  v.  Miller,  and  Whitney  v.  Union 
R.  Co.,  nor  will  it  be  necessary  to  refer  to  these  again,  ex- 
cept in  their  connection  with  the  cases  of  a  more  recent  date, 
which  arc  here  collected. 

An  example  of  the  class  of  easements  here  intended  may 
be  found  in  Parker  v.  Nightingale,^  the  facts  in  which  case 
were  briefly  these.  The  estates  in  question  were  situate 
upon  a  "court"  or  "place"  in  Boston,  and  consisted  of 
several  dwelling-houses  erected  upon  each  side  of  a  culde 
sac,  or  a  street  open  only  at  one  end.  The  land  on  which 
these  had  been  erected,  originally  belonged  to  several  heirs, 
who  agreed  between  themselves  that  it  should  be  laid  out 
into  a  court,  to  be  occupied,  exclusively,  by  dwelling-houses, 
and  that  in  conveying  the  lots  the  grantees  should  be  laid 
under  obligation  by  way  of  condition  or  limitation  of  the  use 
thereof,  "  that  no  other  building  except  one  of  brick  or  stone, 
of  not  less  than  three  stories  in  height,  and  for  a  dwelling- 
house  only,"  should  be  erected  by  them.  The  deeds  of  the 
lots  were  accordingly  respectively  made  upon  this  condition, 
and  the  same  was  referred  to  or  repeated  in  the  subsequent 
conveyances.  One  of  the  tenants  of  one  of  the  houses  erected 
under  this  arrangement,  was  about  to  open  a  restaurant  in 
the  house  which  he  occupied,  and  the  proprietors  of  the  other 
houses  in  the  court  prayed  an  injunction  to  restrain  him 
from  so  doing. 

The  original  grantors  had  ceased  to  have  any  interest  in 
the  court,  and  it  will  be  perceived  that  whatever  there  was 
of  covenant  or  condition  in  the  original  deeds,  was  between 
the  grantors  and  grantees  severally,  and  not  between  the 

1  Parker  v.  Nightingale,  6  Allen,  341. 


92       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Cn.  I. 

several  grantees,  and  that,  consequently,  there  was  an  entire 
want  of  privity  between  them.  And  tlie  question  was  if  the 
several  proprietors,  holding  by  independent  titles,  could  en- 
force against  any  one  of  them  the  negative  easement  of  not 
using  the  premises  except  as  a  dwelling-house.  The  impor- 
tance of  the  principle  involved  in  this  inquiry  can  hardly  be 
overestimated  in  a  country  where  new  villages  and  streets 
are  being  built  up,  and  it  is  often  desirable  to  define  and 
limit  the  character  and  condition  of  the  buildings  to  be 
erected  or  tlie  purposes  for  which  they  may  bo  occupied. 
Bigelow,  C.  J.,  in  giving  the  opinion  of  the  court  in  this  case, 
sustaining  and  enforcing  this  easement,  and  enjoining  the  de- 
fendant from  using  his  house  as  a  restaurant,  goes  fully,  and 
with  great  clearness,  into  a  discussion  of  the  grounds  upon 
which  it  rests.  "  A  covenant,  though  in  gross  at  law,  may 
nevertheless  l)e  binding  in  equity,  even  to  the  extent  of  fast- 
ening a  servitude  or  easement  on  real  property,  or  of  secur- 
ing to  the  owner  of  one  parcel  of  land  a  privilege,  or,  as  it  is 
sometimes  called,  "  a  right  to  an  amenity  "  in  the  use  of  an 
adjoining  parcel,  by  which  his  own  estate  may  be  enhanced 
in  value  or  rendered  more  agreeable  as  a  place  of  residence." 
"  So  long  as  he  "  (the  original  purchaser)  "  retains  the  title 
in  himself,  his  covenants  and  agreements  respecting  the  use 
and  enjoyment  of  his  estate  will  be  binding  on  him  personal- 
ly, and  can  be  specifically  enforced  in  equity."  "  A  purchaser 
of  land,  with  notice  of  a  right  or  interest  in  it  existing  only 
by  agreement  with  his  vejidor,  is  bound  to  do  that  which  his 
grantor  had  agreed  to  perform,  because  it  would  be  unconsci- 
entious and  inequitable  for  him  to  violate  or  disregard  the 
valid  agreements  of  the  vendor  in  regard  to  the  estate  of 
which  he  had  notice  when  he  became  the  purchaser.  In 
such  cases  it  is  true,  that  the  aggrieved  party  can  often  have 
no  remedy  at  law.  There  may  be  neither  privity  of  estate 
nor  privity  of  contract  between  himself  and  those  who  at- 
tcnqit  to  appropriate  property  in  contravention  of  the  use  or 
mode  of  enjoyment  impressed  upon  it  by  the  agreement  of 


Sect.  3.]  ACQUIRING   EASExMENTS   BY   GRANT.  93 

their  grantor,  and  with  notice  of  ^yhich  they  took  the  estate 
from  him."  He  goes  on  to  show  that  the  purpose  of  Jhe  re- 
striction inserted  in  the  deeds  was  for  the  benefit  and  advan- 
tage of  other  owners  of  lots  situated  on  the  same  street  or 
court.  "  Thus,  a  right  or  privilege  or  amenity  in  each  lot 
was  permanently  secured  to  the  owners  of  all  the  other  lots." 
Nor  would  it  change  the  result,  though  the  original  owners 
still  retained  some  of  the  lots  in  their  own  hands.  "  The 
effect  of  such  restriction  inserted  in  contemporaneous  con- 
veyances of  the  several  parcels,  under  the  circumstances  al- 
leged, was  to  confer  on  each  owner  a  right  or  interest  in  the 
nature  of  a  servitude  in  all  the  lots  situated  on  the  same 
street,  which  were  conveyed  subject  to  the  restriction."  And 
the  bill  in  behalf  of  the  other  proprietors  was  sustained. 

The  court  had  occasion  to  reaffirm  the  general  doctrine 
above  expressed,  in  the  subsequent  case  of  Hubbell  v.  War- 
ren,^  where  the  defendant  conveyed  one  of  several  house-lots 
upon  a  public  square  to  the  plaintiff,  and  stipulated  in  the 
deed  that  the  houses  to  be  erected  on  these  lots  should  not  be 
set  within  ten  feet  of  the  line  of  the  street ;  and  it  was  al- 
leged in  the  bill  which  was  to  restrain  the  defendant  from 
building  within  less  than  .twelve  feet  of  the  line  of  the  street, 
that,  when  plaintiff  took  his  deed,  the  defendant  orally  agreed 
that  the  houses  should  not  be  built  within  that  distance  from 
the  street,  and  that  he  the  plaintiff  had  erected  his  house  ac- 
cordingly. The  court  say :  "  That  an  agreement  between 
owners  of  adjacent  parcels  of  land,  restricting  the  mode  of  its 
use  and  enjoyment,  although  not  entered  into  in  the  form  of 
a  covenant  or  condition,  or  so  framed  as  to  be  binding  upon 
heirs  or  assigns  by  virtue  of  privity  of  estate,  may  neverthe- 
less create  a  right  in  the  nature  of  a  servitude  or  easement 
in  the  land  to  which  it  relates  which  can  be  enforced  in  equi- 
ty, is  now  well  settled  in  this  Commonwealth.  But,  to  estab- 
lish such  quasi-servitude  or  easement,  it  must  appear,  either 
by  express  stipulation  or  necessary  and  unavoidable  implica- 

V  Hubbell  V.  Warren,  8  Allen,  173.     See  Wolfe  v.  Frost,  4  Sandf.  c.  72. 


94  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

tion,  that  the  parties  intended  to  impose  a  permanent  restraint 
on  the  use  or  mode  of  occupation  of  their  respective  estates." 
This  might  be  done  by  a  condition  or  reservation  incorpora- 
ted into  a  grant,  or  appended  to  it  as  a  covenant  real,  or  so 
inserted  as  to  carry  notice  to  all  persons  that  the  use  of  the 
premises  is,  to  a  certain  extent,  qualified  or  limited,  and  the 
intent  to  create  a  servitude  or  privilege,  in  its  nature  perpet- 
ual, manifested.  But  where  it  rests  in  parol,  or  in  form  of  a 
covenant  in  gross,  or  by  a  separate  independent  agreement, 
it  must  contain  a  stipulation  in  express  terms  that  the  right 
or  privilege  is  to  be  a  permanent  restriction  on  the  land,  or 
such  as  leads  to  the  conclusion  that  that  is  the  intention  of 
the  parties.  And  the  case  turned  upon  the  nature  of  the 
agreement  in  this  respect  as  to  the  two  feet  in  question,  Avhich 
in  terms  related  to  the  first  erection  of  the  houses  only,  and 
not  to  subsequent  changes. 

The  above  citations  serve  to  show  the  nature  and  limita- 
tions of  easements  and  servitudes  growing  out  of  agreements 
over  which  equity  exercises  cognizance,  and  it  will  not  be 
necessary  to  refer  so  fully  to  other  cases  of  a  like  character 
in  which  a  similar  doctrine  has  been  maintained. 

The  case  of  Tallmadge  v.  E.  River  Bank,^  was  in  many 
respects  like  that  of  Hubbell  v.  Warren,  except  that  the 
parol  agreement  under  which  the  parties  had  acted,  was 
made  in  reference  to  a  permanent  arrangement  between  sev- 
eral estates  as  to  their  occupation.  These  were  upon  a  street 
in  New  York,  which  was  originally  laid  out  upon  a  plan,  and 
a  space  eight  feet  in  width,  on  each  side  of  the  street  and 
outside  of  the  lines  thereof,  was  platted  and  laid  down  upon 
the  plan  which  the  owner  of  the  land  declared,  to  the  first 
purcliascrs  of  the  lot,  was  to  be  kept  open  in  front  of  the 
houses  to  be  erected  thereon.  He  built  several  houses  him- 
self in  conformity  to  this  line,  occupying  this  strip  by  door- 
steps and  enclosed  areas,  and  when  he  sold  them  he  stated 
to  the  purchasers  that  this  space  was  always  to  remain  so, 

1  Tallmadge  v.  E.  River  Bank,  26  N.  Y.  105. 


Sect.  3.]  ACQUIRING   EASEMENTS   BY   GRANT.  95 

but  he  put  no  restrictions  in  his  deeds,  and  bounded  the  lots 
by  the  line  of  the  street.  One  of  the  purchasers  of  lots  to 
whom  this  restriction  was  stated,  built  his  house  accordingly. 
But  a  purchaser  under  him  was  beginning  to  build  upon  this 
eight  feet  in  front  of  his  house,  when  the  other  proprietors  in 
the  street  sued  out  a  bill  to  enjoin  him.  One  ground  upon 
which  they  did  it,  was  that  this  space  had  been  dedicated  to 
the  public  as  a  street.  The  court  held  that  there  had  been 
no  such  dedication,  but  that  the  representations  and  circum- 
stances under  which  the  sales  were  made,  bound  the  original 
vendor  in  equity  to  have  the  terms  kept  and  fulfilled  upon 
which  the  first  purchasers  acquired  and  paid  for  their  estates, 
and  attached  to  his  other  lots,  and  to  all  who  purchased  with 
knowledge.     And  the  injunction  was  granted. 

As  an  example  of  the  extent  to  which  courts  are  disposed 
to  carry  the  doctrine  of  constructive  negativ^e  easements, 
even  in  favor  of  third  parties,  reference  is  made  to  the  cases 
of  Greene  v.  Creighton  and  Gibert  v.  Peteler.  In  the  first  of 
these,  several  owners  of  a  lot  of  land  in  the  city  of  P,  propos- 
ing to  open  a  street  across  it,  and  to  dedicate  it  to  the  city, 
joined  in  a  deed  poll  to  the  city  of  P,  #»f  the  land  of  the  street 
for  the  purposes  of  a  highway,  and  in  it  recited  that  it  was 
"  understood,  covenanted,  and  agreed  by  the  grantors  for 
themselves,  their  heirs  and  assigns,"  that  no  building  should 
be  built  within  so  many  feet  of  the  line  of  the  street.  Al- 
though the  deed  was  to  the  city,  the  court  held  that  in  view 
of  the  common  benefit  for  which  the  deed  proposes  to  impose 
a  restriction  upon  the  heirs  and  assigns  of  the  covenantors,  it 
was  "  to  be  construed  as  a  grant  in  fee  to  each  of  a  negative 
easement  in  the  lands  of  all,  and,  as  such,  capable  of  being- 
enforced  by  the  appropriate  remedies  at  law  and  in  equity."  ^ 

In  the  case  of  Gibert  v.  Peteler ,2  one  G,  who,  owning  prem- 
ises, the  view  from  which  he  wished  to  be  kept  open,  bought 

^  Greene  v.  Creighton,  7  R.  I.  1. 

2  Gibert  v.  Peteler,  38  Barb.  488,  514  ;  Brouwer  v.  Jones,  2.3  Barb.  153;  Sey- 
mour V.  M'Donakl,  4  Sandf.  c.  502;  Clash  v.  Martin,  49  Penn.  289. 


96  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.       [    [Cn.  I. 

an  estate,  the  building  upon  which  would  obstruct  this  view, 
but  had  the  deed  made  to  a  third  person  without  any  trust 
being  declared  in  his  favor.  At  G's  request,  this  latter  estate 
was  then  sold  to  F,  who  covenanted  with  his  grantor,  his 
heirs  and  assigns,  that  they  should  not  erect  anything  upon 
the  premises  to  obstruct  the  view  from  G's  house.  There 
were  several  successive  conveyances  of  this  parcel  in  which 
the  covenant  of  restriction  was  noticed,  and  G  made  a  quali- 
fied release  to  one  of  the  owners  of  the  restriction  as  to  a  part 
of  the  premises.  But  several  of  the  later  conveyances  made 
no  reference  to  this  restriction.  The  court  held  that  there 
was  a  negative  easement  or  servitude  upon  this  estate  in 
favor  of  G,  which  could  be  .enforced  in  equity  if  not  at  law. 
*'  The  action  of  courts  of  equity  in  such  cases  is  not  limited 
by  rules  of  legal  liability,  and  does  not  depend  upon  legal 
privity  of  estate,  or  require  that  the  party  invoking  the  aid 
of  the  court  should  come  in  under  and  after  the  covenant. 
A  covenant  or  agreement,  restricting  the  use  of  any  lands  or 
tenements  in  favor  of  or  on  account  of  other  lands,  creates 
an  easement,  and  makes  one  tenement,  in  the  language  of  the 
civil  law,  servient,  and  flie  other  dominant,  and  this  without 
regard  to  any  privity  or  connection  of  title  or  estate  in  the 
two  parcels  or  their  owners.  All  that  is  necessary  is  a  clear 
manifestation  of  the  intention  of  the  person  who  is  the 
source  of  title  to  subject  one  parcel  of  land  to  a  restriction 
in  its  use,  for  the  benefit  of  another,  lohether  that  other  be- 
long- at  the  time  to  himself  or  to  third  persons,  and  sufficient 
lang-uag-e  to  make  that  restriction  perpetuaL^^ 

The  case  of  Badger  v.  Boardman  is  not  in  conflict  with  the 
above  doctrines,  because,  though  there  was  originally  a  re- 
striction upon  the  estate  of  the  defendant,  it  was  not  created 
in  favor  of  that  belonging  to  the  plaintiff.^ 

A  reference  to  the  cases  cited  below,  will  show  that  the 

^  Badger  v.  Bo.ardmnn,  16  Gray;  Parker  v.  Nightingale,  6  Allen,  348.  See 
also  Wolfe  v.  Frost,  4  Sandf.  c.  72,  for  the  grounds  on  which  an  alleged  similar 
parol  agreement  was  not  held  to  create  an  easement. 


Sect.  3.]  ACQUIRING  EASEMENTS   BY   GRANT.  97  " 

English  Courts  of  Chancery  hold,  substantially,  the  same 
doctrines  as  those  above  adopted  by  the  American  courts.^ 

Without  stopping  to  notice  these  cases  in  detail,  it  may  be 
proper  to  refer  to  the  fact  that  in  Tulk  v.  Moxhay,  the  court, 
in  enforcing  the  servitude,  do  not  regard  the  covenant  which 
originally  created  it  as  running  with  the  land  ;  "  that  the 
question  does  not  depend  upon  whether  the  covenant  runs 
with  the  land  is  evident  from  this,  that  if  there  was  a  mere 
agreement  and  no  covenant,  this  court  would  enforce  it 
against  a  party  purchasing  with  notice  of  it,  for  if  an  equity 
is  attached  to  the  property  by  the  owner,  no  one  purchasing, 
with  notice  of  that  equity,  can  stand  in  a  different  situation 
from  the  party  from  whom  he  purchased."  Another  fact 
which  appeared  upon  the  hearing  was,  that  the  character  of 
the  occupants  and  condition  of  the  tenements  for  whose 
convenience  the  square  in  question  had  been  left  open  by 
contract,  as  well  as  that  of  the  square  itself,  had  essentially 
changed,  without  affecting  the  easement  in  their  favor.  And 
in  the  case  of  Piggott  v.  Stratton  it  was  held,  that  after  an 
easement  had  once  attached  in  favor  of  one  estate  over 
another  by  a  covenant  made  by  the  original  purchaser  of  the 
servient  estate  with  his  vendor,  it  was  not  competent  for  the 
covenantor  to  affect  this  right,  while  the  dominant  estate 
was  in  another's  hands,  by  releasing  the  owner  of  the  servi- 
ent estate  from  the  obligation  of  the  covenant. 

But  in  order  to  give  to  a  conveyance  the  incidents  of  an 
equitable  servitude  or  easement  in  the  parcel  granted,  there 
must  be  an  intention  to  do  this  shown  on  the  part  of  those 
who  make  the  conveyance.  Thus,  where  one  conveyed  a 
parcel  of  land  by  metes  and  bounds,  and  referred  to  a  plan 
as  having  the  lot  laid  down  upon  it,  it  was  held  not  to  convey 
any  rights  in  other  lots  on  the  same  plan  which  did  not 

1  Tulk  V.  Moxhay,  1  H.  &  Twclls,  105 ;  s.  c,  II  Beavan,  571 ;  2  Phillips,  774; 
Piggott  V.  Stratton,  1  De  G.  F.  &  Jones,  33  ;  Coles  v.  Sims,  5  Do  G.  M'N.  &  Gord. 
1  ;  s   c,  1  KayT  56 ;  Rankin  v.  Huskisson,  4  Sim.  Ch.  13;  Whitman  v.  Gibson, 
9  Sim.  196;  Mann  v.  Stephens,  15  Sim,  377. 
7 


98  THE  LAW   OF  EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

adjoin  the  granted  premises,  although  on  the  plan  these  were 
called  "  ornamental  grounds  "  and  "  play-ground."  ^ 


SECTION  IV. 

OF   ACQUIRING. EASEMENTS  BY   USER   AND   PRESCRIPTION. 

1.  Prescription  defined. 

2.  Presumption  of  lost  deed,  when  applied. 

3.  Time  of  presumption  derived  from  rules  of  limitation. 

4.  Distinction  between  ancient  and  modern  prescriptions.  '* 

5.  Slodern  prescription  regarded  as  evidence. 

6.  Strickler  v.  Todd.     Conclusiveness  of  modern  prescriptions. 

7.  How  far  modern  prescriptions  are  conclusive. 

8.  How  far  modern  and  ancient  prescriptions  are,  in  effect,  the  same. 

9.  Extent  and  mode  of  user  define  the  right  to  the  Easement. 

10.  User  not  referred  to,  to  define  an  express  grant. 

11.  Of  what  a  prescription  maj'  be  gained. 

12.  Prescription  applies  only  where  there  may  be  a  grantee  and  a  thing  granted. 

13.  Distinction  between  prescriptions  and  customs. 

14.  Prescription  can  only  be  claimed  of  what  some  one  might  grant. 

15.  Lockwood  v.  Wood.     Custom  defined  and  explained. 

16.  Customs  must  be  reasonable  in  their  subjects. 

17.  Custom  limited  to  local  inhabitants. 

18.  Customs  must  be  reasonable  in  their  mode  of  use. 

19.  Prescription  more  extensive  than  custom. 

20.  Inhabitants,  etc.  must  prescribe  in  a  que  estate. 

[*64]     *21.  Nothing  claimed  in  a  que  estate  but  appurtenances  to  lands. 

22.  How  far  prescription  and  custom  may  coexist. 

23.  Prescription  to  be  good  must  be  reasonable. 

24.  What  length  of  time  of  user  creates  a  prescription. 

25.  No  use  for  less  than  the  period  of  prescription  avails. 

26.  What  the  user  must  be,  to  acquire  a  prescription. 

27.  What  is  an  adverse  user. 

28.  May  be  adverse,  though  begun  in  agreement. 

29.  Mere  use  does  not  gain  prescription,  if  no  injury  to  a  right. 
80.  User,  that  invades  owner's  right,  may  work  a  prescription. 

31.  User,  unexplained,  implies  that  it  is  adverse. 

32.  South  Carolina  doctrine  of  user  of  ways  over  wild  lands. 

33.  Maine  doctrine  of  flowing  of  lands  giving  prescriptive  rights. 

34.  35.  Same  subject  in  Massachusetts  and  New  York.  ' ' 

36.  Of  gaining  an  adverse  negative  easement. 

37.  Easements  gained  by  user  exceeding  a  right  as  to  part. 

38.  User  never  i)resumcd  adverse  where  there  is  a  grant. 

1  Light  V.  Goddard,  11  Allen,  5. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  99 

39.  No  prescription,  unless  in  case  of  actual  user. 

40.  Barnes  v.  Haj'nes.     What  is  an  adverse  user. 

41.  User  by  one  of  two  common  owners  not  adverse. 

42.  Whealley  v.  Clirisman.     Adverse  enjoyment  of  the  tiling  granted. 

43.  User  must  be  exclusive,  to  gain  a  prescription. 

44.  User  may  be  exclusive,  though  used  by  others,  and  when. 

45.  User  may  gain  prescription,  though  interrupted  by  strangers. 

46.  Different  prescriptions  may  coexist. 

47.  Curtis  v.  Angier.     User  by  one  does  not  prevent  prescription  by  another. 

48.  User  must  be  continuous  to  gain  prescription. 

49.  Time  from  which  continuous  user  is  reckoned. 

60.  Wliat  constitutes  a  continuous,  uninterrupted  user. 

61.  User  by  permission,  or  secretly,  not  continuous. 

62.  Of  change  of  user  of  water  as  affecting  its  continuity. 

53.  Change  of  localitj'  of  dam,  or  user  of  water,  when  unimportant. 
64.  Effect  of  change  of  extent  of  user,  by  defects  in  a  mill-dam. 
55.  Temporary  suspension  of  user  does  not  affect  its  continuity. 

66.  Nature  of  user  may  not  be  changed. 

67.  How  far  change  in  a  way  affects  the  continuity  of  user. 

58.  How  far  acquiring  prescription  affected  by  death  of  a  party. 

59.  Successive  owners  in  privity  maintain  a  continuity. 

60.  Interruption  of  enjoyment  defeats  the  requisite  continuity. 

61.  Union  of  possession  of  the  two  estates  defeats  the  continuity. 

62.  Occupation  and  user  by  successive  tenants  for  years,  not  continuous. 

63.  Tenant  at  will  of  dominant  estate  cannot  gain  an  Easement. 

64.  Prescription  suspended  as  to  minor  heirs. 

65.  No  prescription  gained  while  there  is  a  reversioner. 

66.  User  must  be  by  acquiescence  of  the  owner,  to  gain  prescription. 

67.  What  amounts  to  the  requisite  acquiescence. 

68.  User  must  not  be  opposed  or  contentious. 

69.  User  must  be  while  owner  of  servient  estate  could  oppose  it. 

70.  Reversioners  and  remainder-rhen  not  affected  by  user. 

71.  How  far  an  easement  gained  by  tenant  for  life  accrues  to  reversioner. 

72.  No  easement  acquired  while  estate  is  in  possession  of  tenant. 

73.  Effect  of  an  heir  being  a  minor,  during  an  adverse  user. 

*73a.  Effect  of  an  intervening  disability  on  prescriptions.  [*65] 

74.  Prescription  must  be  of  what  could  be  granted. 

75.  Ways,  though  used,  if  not  adverse,  do  not  pass  as  appurtenant. 

76.  Watkins  v.  Peck.     Easement  of  aqueducts,  &:c. 

77.  Tyler  v.  Wilkinson  and  Lamb  v.  Crossland.     Conclusiveness  of  prescriptions. 

1.  The  doctrine  of  user  and  enjoyment  as  evidence  of  the 
grant  of  an  easement,  under  which  a  title  may  be  claimed, 
involves  an  inquiry  into  the  rules  applicable  to  what  the  law 
denominates  Prescription. 

Anciently,  as  already  stated,  prescription  implied  a  claim 
to  an  incorporeal  hereditament  arising  from  the  same  hav- 


,  100  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

ing  been  enjoyed  for  so  long  a  time  that  there  was  no  ex- 
isting evidence  as  to  when  such  user  and  enjoyment  com- 
menced. Its  origin  must  have  been,  in  the  quaint  language 
of  the  law,  at  a  time  "  whereof  the  memory  of  man  runneth 
not  to  the  contrary."  At  one  time  this  was  fixed  at  the 
commencement  of  the  reign  of  Richard  I.  But  it  was  al- 
ways sufficient,  if  no  evidence  existed  of  a  time  at  which  it 
had  not  begun,  and  subsequent  to  which  it  must  have  had 
its  origin,  though  it  was  open  to  be  rebutted  by  proof  that 
the  use  did  begin  within  the  period  of  memory. ^ 

And  prescription,  when  properly  used,  is  still  applied  to 
incorporeal  hereditaments,  and  not  to  lands.^ 

The  common  law,  in  this  respect,  corresponds  with  the  dis- 
tinction made  by  the  civil  law  between  Usucapion  and  Pre- 
scription ;  the  former  being  a  mode  of  acquiring  title  to  a 
thing  itself  by  the  effect  given  to  a  long  possession  or  enjoy- 
ment of  it,  the  latter  being  applied  to  the  manner  of  acquir- 
ing or  losing  the  various  kinds  of  right  by  the  effect  of  the 
lapse  of  time.  And  the  reader  should  bear  in  mind  that  it 
is  in  this  limited  sense  of  the  term,  that  prescription  is  to  be 
regarded  in  treating  of  the  present  subject.^ 

Under  the  Roman  law,  where  a  bond  fide  possessor  had  ac- 
quired a  res  mancipi,  something  corporeal  in  its  nature,  by 
tradition  or  any  other  inappropriate  form  of  transfer,  and  had 
possessed  the  same  for  two  years  in  the  case  of  immovables, 
or  for  one  year  in  the  case  of  movables,  what  was  called  Qui- 
ritarian  ownership  was  the  result.  The  office  which  Usuca- 
pion performed  for  res  mancipi  was,  in  a  measure,  performed 
for  res  nee  mancipi,  or  things  incorporeal  in  their  nature,  by 
prescription,  though  the  period  required  was  a  longer  one, 
and  the  ownership  took  the  name  of  Bonitarian.^ 

1  1  Lomax,Di<!:.  G14,  615;  Litt.,  M70;  Co.  Litt.  115  a  ;  2  Tuck.  Blackst.  31  ; 
Mayor  of  Hull  v.  Homer,  Cowp.  109. 

2  Ferris  v.  Brown,  3  Barb.  105;  Caldwell  v.  Copeland,  37  Pcnn.  431 ;  Ayliff, 
326;  Outer,  Bracton,  c.  15. 

^  Merlin,  llepirtoirc  de  Juri.sj)rudencc,  tit.  Prescription,  sect.  1,  §  1 ;  D.  8,  1, 
14. 
*  11  Law  Mag.  &  Kcv.  109. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  101 

*2.  To  obviate  the  uncertainty  of  title  arising  from  [*QQ^ 
a  user  and  enjoyment,  however  long  in  time,  the 
courts,  in  accordance  with  the  idea  of  quieting  titles  to  lands 
after  a  certain  prescribed  period  of  enjoyment,  which  is  reg- 
ulated by  local  statutes  of  limitation  interposing  a  bar  to 
claims  of  priority  of  right  after  a  certain  limit  of  time,  adopt- 
ed tlie  notion  of  presuming  an  ancient  grant  by  deed  which 
had  been  lost. 

The  presumption  of  a  grant  from  long-continued  enjoy- 
ment arises  only  where  the  person,  against  whom  the  right  is 
claimed,  might  have  interrupted  or  prevented  the  exercise  of 
the  subject  of  the  supposed  grant. ^ 

In  the  words  of  Mr.  Tudor  :  "  Amidst  these  difficulties,  it 
became  usual,  for  the  purpose  of  supporting  a  right  which 
had  been  long  enjoyed,  but  which  could  be  shown  to  have 
originated  within  time  of  legal  memory,  or  to  have  at  one 
time  been  extinguished  by  unity  of  possession,  to  resort  to 
the  clumsy  fiction  of  a  lost  grant,  which  was  pleaded  to  have 
been  made  by  some  person  seized  in  fee  of  the  servient,  to 
another  seized  in  fee  of  the  dominant  tenement,  and,  upon 
enjoyment  being  proved  for  twenty  years,  the  judges  held,  or 
rather  directed  juries  to  believe,  that  a  presumption  arose 
that  there  had  been  a  grant  made  of  the  easement  which  had 
been  subsequently  lost."'-^ 

The  fiction  of  presuming  a  grant  from  twenty  years  pos- 
session or  use,  was  invented  by  the  English  courts  in  the 
eighteenth  century,  to  avoid  the  absurdities  of  their  rule  of 
legal  memory,  and  was  derived  by  analogy  from  the  limita- 
tion prescribed  by  the  Statute  of  21  Jac.  1,  c.  21,  for  actions 
of  ejectment,  not  upon  a  belief  that  a  grant  in  any  particu- 
lar case  has  been  made,  but  on  general  presumptions.^ 

The  doctrine  was  originally  adopted  for  the  purpose  of 
quieting  titles,  and  giving  effect  to  long-continued  posses- 

1  Webb  V.  Bird,  13  C.  B.  N.  Y.  843  ;  Chasemore  v.  Richards,  7  H,  L.  Cases, 
349. 

2  Tud.  Lead.  Cas.,  114. 

8  Edsou  V.  Munseli,  10  Allen,  568. 


102  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

sions.  Until  a  comparatively  recent  period,  no  deed  could 
be  pleaded  without  a  profert.  But  when  grants  came  to  be, 
presumed  from  long-continued  possession  and  enjoyment,  it 
was  held  that  the  profert  might  be  dispensed  with,  on  sug- 
gestion that  the  deed  was  lost  by  time  or  accident.^ 

3.  This  period,  unless  other  provision  was  made  in  the 
local  statutes  of  the  State  in  which  the  questions  have  arisen, 
has  been  assumed  to  be  the  term  of  twenty  years.  So  that 
now  an  enjoyment  of  an  easement  for  the  term  of  twenty 
years  raises  a  legal  presumption  that  the  right  was  originally 
acquired  by  title.  And  this,  though  the  jury  should  not  find, 
as  a  fact,  that  any  deed  had  ever  been  made.  And  although 
the  user  began  in  fact  as  an  act  of  trespass.^ 

4.  The  result  has  therefore  been,  that  the  modern  doc- 
trine of  prescription  requires  merely  a  user  and  enjoyment 
of  at  least  twenty  years,  instead  of  the  former  requirement 
of  immemorial  enjoyment.  But  there  seems  to  be  one  dis- 
tinction between  ancient  and  modern  prescriptions  which  has 
not  always  been  regarded  by  courts  or  writers,  and  that  is, 
while  under  the  ancient  doctrine  of  prescription  such  an  en- 
joyment was  regarded  as  conclusive  evidence  of  title, 

[*67]   *prescription,  as  used  at  this  day,  only  raises  a  legal 
presumption  of  such  title,  which  may  be  rebutted  by 
other  evidence.^ 

And  speaking  of  length  of  enjoyment  as  the  basis  of  a  pre- 
sumed grant,  the  court,  in  Cooper  v.  Smith,  say  :  "  Length 
of  time  cannot  be  said  to  be  an  absolute  bar  like  the  statute 
of  limitations,  but  is  only  a  presumptive  bar  to  be  left  to  a 
jury.     This  presumption  of  grant  from  long  usage,  is  for  the 

1  Valentine  v.  Piper,  22  Pick.  93  ;  Melvin  v.  Lock,  &c.,  17  Pick.  255;  Emans 
V.  Tiirnhull,  2  .lolins.  313. 

2  Sibley  v.  Ellis,  11  Gray,  417. 

3  1  Report  Eng.  Conim.  51  ;  1  Greenl.  Ev.,  §  17  ;  Sargent  v.  Ballard,  9  Pick. 
251,  255;  Caniphcll  v.  Wilson,  3  East,  294,  overruling  in  part  Holcroft  ;■.  Heel, 
1  Bos.  &  P.  400;  Livett  v.  Wilson,  3  Bing.  115;  Tyler  v.  Wilkinson,  4  Mason, 
397-402,  and  the  comments  thereon  in  Lamb  v.  Crossland,  4  Rich.  5J6,  543  ; 
Best,  Presumpt.  103;  Cooper  v.  Smith,  9  Serg,  &  R.  26;  Corning  v.  Gould,  16 
Wend.  531. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  103 

sake  of  peace  and  furtherance  of  justice.  It  cannot  be  sup- 
posed, where  there  has  been  a  long  exercise  and  possession, 
of  such  right,  that  any  person  would  suffer  his  neighbor  to 
obstruct  the  light  of  his  windows  or  render  his  house  uncom- 
fortable, or  to  use  a  way  for  so  long  a  time,  with  carts  or  car- 
riages, unless  there  had  been  some  agreement  between  the 
parties  to  that  effect.  But  this  principle  must  always  be 
taken  with  this  qualification,  that  the  possession,  from  which 
a  party  would  presume  a  grant  or  easement,  must  be  with 
tlie  knowledge  of  the  person  seized  of  the  inheritance."  ^ 

And  the  language  of  the  court,  in  Ricard  v.  Williams,  is : 
"  Presumptions  of  this  nature  are  adopted  from  the  general 
infirmity  of  human  nature,  the  difficulty  of  preserving  muni- 
ments of  title,  and  the  public  policy  of  supporting  long  and 
uninterrupted  possessions.  They  are  founded  upon  the  con- 
sideration, that  the  facts  are  such  as  could  not,  according  to 
the  ordinary  course  of  human  affairs,  occur,  unless  there  was 
a  transmutation  of  title  to,  or  an  admission  of,  an  existing 
adverse  title  in  the  party  in  possession." 

*5.  But,  in  the  language  of  Lord  Mansfield,  in  [*68] 
Mayor  of  Hull  v.  Horner :  "  There  is  a  great  differ- 
ence between  length  of  time  which  operates  as  a  bar  to  a 
claim,  and  that  which  is  only  used  by  way  of  evidence.  A 
jury  is  concluded  by  length  of  time  that  operates  as  a  bar. 
So  in  the  case  of  a  prescription,  if  it  be  time  out  of  mind,  a 
jury  is  bound  to  conclude  the  right  from  that  prescription,  if 

there  could  be  a  legal  commencement  of  the  right 

But  length  of  time,  used  merely  by  way  of  evidence,  may  be 
left  to  the  consideration  of  the  jury,  to  be  credited  or  not, 
and  to  draw  their  inference  one  way  or  the  other,  according 
to  circumstances."  2     The  language  of  Eyre,  C.  J.,  in  Hol- 

1  Cooper  V.  Smith,  9  Serg.  &  R.  26.  See  also  Yard  v.  Ford,  2  Wms.  Saund., 
5  ed.  175,  note;  Tinkham  v.  Arnold,  3  Me.  120;  Ricard  v.  Williams,  7  Wheat. 
59,  109;  post,  pi.  29,  66;  Cooper  v.  Barber,  3  Taunt.  99;  Merlin,  Repertoire  de 
Jurisprudence,  tit.  Prescription,  sect.  1,  §  1 ;  Valentine  v.  Piper,  22  Pick.  95 ;  Ed- 
son  V.  Munsell,  10  Allen,  568;  Stevens  r.  Taft,  11  Gray,  33. 

2  Cowp.  108,  109  ;  Parker  v.  Foote,  19  Wend.  309,  315;  Livctt  v.  Wilson,  3 
Bing.  115;  Darwin  v.  Upton,  2  Saund.  175  c;  Campbell  v.  Wilson,  3  East,  294. 


104  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [On.  I. 

croft  V.  Heel,  as  to  twenty  years   being  an   actual  bar,  is 
tli^refore  too  strong.^ 

Of  the  many  American  cases  that  might  be  selected  sus- 
taining the  above  view,  that  of  Wilson  v.  Wilson  may  be 
cited,  where  the  court  of  North  Carolina  say :  "  The  pre- 
sumption of  a  grant  arising  from  the  use  of  an  easement  for 
more  than  twenty  years,  and  acquiescence  by  the  owners  of 
the  land,  might  be  repelled  by  other  evidence,  and  if  the  pre- 
sumption was  not  repelled,  they  (the  jury)  ouglit  to  find  for 
the  defendants,"  who  claimed  the  easement.  And  they  cite, 
with  approbation,  2  Stark.  Ev.  669,  upon  the  same  subject.^ 

6.  An  instance  of  an  adoption  in  full  of  the  ancient  doc- 
trine of  prescription  in  speaking  of  the  modern  notion  of  pre- 
scriptive rights,  is  the  language  of  Duncan,  J.,  in  Strickler 
V.  Todd  :  "  I  begin  to  think  that  the  country  has  been  long 
enough  settled  to  allow  of  the  time  necessary  to  prove  a  pre- 
scription  It  is  well  settled,  that  if  there  has 

[*69]  been  an  *  uninterrupted  exclusive  enjoyment  above 
twenty-one  years  (the  period  of  limitation  in  Pennsyl- 
vania) of  water  in  any  particular  way,  this  affords  a  conclu- 
sive prescription  of  right  in  the  party  so  enjoying  it,  and  that 
is  equal  to  aright  by  prescription." ^  And  Parsons,  J.,  in 
Rust  V.  Low,  says  :  "  The  country  has  been  settled  long 
enough  to  allow  of  the  time  necessary  to  prove  a  pi*escrip- 
tion."  4 

7.  But  as  to  the  effect  to  be  given  to  the  use  of  a  way 
across  another's  land  for  twenty  years,  it  was  held  by  the 
English  courts  to  be  the  rule,  not  that  a  jury  must,  but  that 
they  7nai/  presume  a  grant,  and  that  they  are  at  liberty  to 
infer  a  grant  and  to  treat  the  user  as  an  adverse  possession 
or  enjoyment,  unless  the  owner  of  the  servient  tenement 

1  Holcroft  V.  Heel,  1  Bos.  &  P.  403.  See  Pritchard  v.  Atkinson,  4  N.  II.  9 ; 
post,  pi.  8. 

2  Wilson  V.  Wilson,  4  Dcv.  154.     See  Ingraham  v.  Hough,  1  Jones,  No.  C.  39. 

3  Strickler  v.  Todd,  10  Serg.  &  K.  G3,  69. 
*  Rust  V.  Low,  6  Mass.  90, 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIl'TION.  105 

shows  it  was  done  by  leave  or  favor,  or  otherwise  than  under 
a  claim  or  assertion  of"  right. ^ 

Thus,  though  a  way  or  a  watercourse  may  have  been  en- 
joyed for  the  term  of  twenty  years,  or  more,  it  may  rebut 
the  presumption  of  any  deed  or  grant  thereof  to  show  that 
such  enjoyment  began  during  a  long  term  for  years,  or  dur- 
ing an  estate  for  life,  where  the  owner  of  the  inheritance, 
being  a  reversioner  or  a  remainder-man,  would  not  be  bound 
by  such  enjoyment  which  he  could  not  have  prevented,  it  be- 
ing an  essential  element  of  an  enjoyment  which  shall  operate 
as  a  prescription,  that  it  was  had  with  the  acquiescence  of 
him  who  is  seized  of  the  inheritance,  and  not  by  his  express 
permission.^ 

And  the  distinction  there  is  between  a  length  of  time  which 
operates  as  a  bar  to  a  claim,  and  that  which  is  only  used 
by  w^ay  of  evidence,  consists  in  the  jury,  in  the  one 
*  case,  being  concluded  by  the  length  of  time  ;  in  the  [*70] 
other,  being  left  to  draw  their  inference  one  way  or 
the  other  according  to  circumstances.  And  it  is  said  :  "  So 
in  the  case  of  prescription,  if  it  be  time  out  of  mind,  a  jury 
is  bound  to  conclude  the  right  from  that  prescription,  if 
there  could  be  a  legal  commencement  of  the  i-ight."^  Stat- 
utes of  limitation  do  not  extend  to  incorporeal  hereditaments, 
with  few  exceptions,  but  prescription  has  been  made  to  con- 
form to  the  statute  by  analogy.  And  by  statute  in  Massa- 
chusetts, easements  cannot  be  gained  by  adverse  user  and 
enjoyment  for  a  less  period  than  twenty  years.^ 

8.  Any  seeming  discrepancy  between  the  ancient  doctrine 
of  prescription  and  the  modern  notion  of  a  presumed  grant 

1  Campbell  r.  Wilson,  2  East,  294;  Livett  v.  Wilson,  2  Bing.  115;  Yard  v. 
Ford,  2  Wms.  Saund.  175  a. 

-  Wood  V.  Veal,  5  Barnew.  &  Aid.  454  ;  Doe  v.  Reed,  Ibid.  232  ;  per  Hol- 
royd,  J.,  Daniel  v.  North,  11  East,  372;  Yard  v.  Eord,  2  Wms.  Saund.  175  d, 
note;  Coalter  v.  Hunter,  4  Rand.  58  ;  Nichols  v.  Aylor,  7  Leigh,  546,  565  ;  Bid- 
die  V.  Ash,  2  Ashm.  211,  221  ;  Smith  v.  Miller,  11  Gray,  148. 

3  Mayor  of  Hull  v.  Horner,  Cowp.  102  ;  Oswald  v.  Legh,  1  T.  R.  270. 

*  Tracy  r.  Atherton,  36  Verm.  510,  514;  Edson  v.  Munsell,  10  Allen,  566; 
Gen.  Stat.  C.  91,  §  22. 


106  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cif.  I. 

where  the  deed  has  been  lost,  as  to  the  conclusiveness  of  the 
evidence  thereby  resulting  in  favor  of  a  title  to  incorporeal 
hereditaments,  may  be  reconciled,  if  we  bear  in  mind  that, 
to  constitute  such  a  user  or  enjoyment  as  raises  such  pre- 
sumption of  a  grant,  requires,  in  addition  to  the  requisite 
length  of  time,  that  it  should  have  certain  qualities  and  char- 
acteristics, such  as  being  adverse,  continuous,  uninterrupted, 
and  by  the  acquiescence  of  the  owner  of  the  inheritance  out 
of  or  over  which  the  easement  is  claimed.  And  if  we  as- 
sume that  these  have  been'  established  by  sufficient  proof,  it 
would,  doubtless,  in  such  a  case,  and  after  such  a  user  and 
enjoyment,  be  held  to  create  as  conclusive  a  presumption  in 
favor  of  him  who  makes  the  claim,  as  if  it  had  been  estab- 
lished by  prescription  in  its  ancient  sense. 

It  may,  therefore,  be  stated  as  a  general  proposition  of  law, 
that  if  there  has  been  an  uninterrupted  user  and  enjoyment 
of  an  easement,  a  stream  of  water  for  instance,  in  a  particu- 
ular  way,  for  more  than  twenty-one,  or  twenty,  or  such  other 
period  of  years  as  answers  to  the  local  period  of  limitation, 
it  affords  conclusive  presumption  of  right  in  the  party  who 
shall  have  enjoyed  it,  provided  such  use  and  enjoyment  be 
not  by  authority  of  law,  or  by  or  under  some  agreement  be- 
tween the  owner  of  the  inheritance  and  the  party  who  shall 
have  enjoyed  it.^  And  this  would  extend  to  the  case  of  a 
dam,  one  end  of  which  rests  upon  the  land  of  another,  and 
has  been  maintained  there  the  requisite  period  of  time,  or 
the  inserting  and  maintaining  a  flume  or  bulk-head  in  an- 
other's dam  and  thereby  drawing  water  from  his  pond.^ 
[*71]  *"In  a  plain  case,  where  there  is  no  evidence  to 
repel  the  presumption  arising  from  twenty  years  un- 

1  Strickler  v.  Todd,  10  Serp^.  &  R.  G3 ;  Olney  v.  Fenner,  2  R.  I.  211  ;  Pills- 
bury  V.  Moore,  44  Me.  154;  Belknap  v.  Trimble,  3  Paige,  577;  Townshend  v. 
M'Donald,  2  Kern.  381  ;  Hazard  v.  Robinson,  3  Mason,  272 ;  Wilson  v.  Wilson, 
4  Dev.  154;  Gayctty  v.  Bcthune,  14  Mass.  51,  53;  Mayor  of  Hull  w.  Horner, 
Cowp.  102;  Parker  v.  Foote,  19  Wend.  309,  315;  Corning  v.  Gould,  16  Wend. 
531  ;  Hall  v.  M'Leod,  2  Mete.  Ky.  98;  Wallace  v.  Flctcbcr,  10  Fost.  434  ;  Win- 
nipiseogce  Co.  v.  Young,  40  N.  H.  420.     Sec  Tracy  i'.  Athcrton,  36  Verm.  512. 

*  Burnliam  v.  Kempton,  44  N.  H.  88. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  107 

interrupted  adverse  user  of  an  incorporeal  right,  the  judge 
may  very  properly  instruct  the  jury  that  it  is  their  duty  to 
find  in  favor  of  the  party  who  has  had  the  enjoyment.  But 
still  it  is  a  question  for  the  jury."  ^ 

And  this,  it  is  believed,  is  in  accordance  with  the  language 
of  Wilde,  J.,  in  Coolidge  v.  Learned :  "  It  has  long  been 
settled,  tliat  the  undisturbed  enjoyment  of  an  incorporeal 
right  affecting  the  lands  of  another  for  twenty  years,  the  pos- 
session being  adverse  and  unrebutted,  imposes  on  the  jury 
the  duty  to  presume  a  grant,  and  in  all  cases  juries  are  so 
instructed  by  the  court.  Not,  however,  because  eitlier  the 
court  or  jury  believe  the  presumed  grant  to  have  been  actu- 
ally made,  but  because  public  policy  and  convenience  re- 
quire that  long-continued  possession  should  not  be  dis- 
turbed." 2 

So  the  English  judges,  in  Knight  v.  Halsey,  speak  of  the 
modern  theory  that  the  length  of  enjoyment  is  to  be  taken 
as  evidence  of  a  lost  deed  of  grant  of  what  is  thus  enjoyed, 
and  call  it  "  a  novel  invention  of  the  judges  for  the  further- 
ance of  justice  and  the  sake  of  peace,  where  there  has  been 
a  long  exercise  of  an  adverse  right."  ^ 

The  language  of  the  court  of  New  York,  when  comment- 
ing upon  rights  gained  by  enjoyment,  may  probably  be  taken 
as  a  brief  and  accurate  statement  of  the  law  as  now  under- 
stood upon  this  point.  "  The  modern  doctrine  of  presuming 
a  right  by  grant,  or  otherwise,  to  easements  and  incorporeal 
hereditaments,  after  twenty  years  of  uninterrupted  ad- 
verse enjoyment,  exerts  a  much  wider  *influence  in  [*72] 
quieting  possession  than  the  old  doctrine  of  title  by 
prescription  which  depended  upon  immemorial  usage.  The 
period  of  twenty  years  has  been  adopted  by  the  courts  in 
analogy  to  the  statute  limiting  an  entry  into  lands ;  but  as 
the  statute  does  not  apply  to  incorporeal  rights,  the  adverse 

1  Parker  v.  Foote,  19  Wend.  309. 

2  Coolidge  V.  Learned,  8  Pick.  504. 

8  Knight  V.  Halsey,  3  Bos.  &  P.  172,  206 ;  3  Dane,  Abr.  55. 


108  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

use  is  not  regarded  a  legal  bar,  but  only  a  groiind  for  pre- 
suming a  right  by  grant  or  in  some  other  form."  ^ 

The  question  in  all  these  cases  is,  whether  the  presump- 
tion of  a  right  to  the  enjoyment  of  the  easement  is  one  of 
law  or  of  fact.  Poland,  C.  J.,  in  Tracy  v.  Atherton,^  exam- 
ines the  point  with  much  learning  and  discrimination.  •  He 
cites  the  language  of  Aldis,  J.,  in  Townsend  v.  Downer,^ 
who  seems  to  regard  it  as  depending  upon  the  purposes  for 
which  the  evidence  of  long  enjoyment  is  offered.  If  it  is  to 
raise  the  presumption  of  a  grant,  without  regard  to  the  fact 
whether  such  a  grant  was  really  made  or  not,  it  may,  with 
the  strictest  propriety,  be  said  that  the  law  presumes  a  grant, 
and  it  would  be  the  duty  of  the  court  to  direct  a  verdict. 
But  where  long  possession  with  other  circumstances  are  ad- 
mitted as  evidence  that  a  grant  was  in  fact  made,  the  law 
permits  the  jury  to  weigh  the  evidence,  and  upon  such  pre- 
sumptive —  not  positive  —  proof  to  find  the  fact. 

"Where  the  subject-matter,"  adds  Aldis,  J.,  "is  not  in- 
cluded in  the  statute,  such  as  easements"  .  .  ,  .  "  the  pos- 
session is  not  prima  facie  adverse.  In  such  cases,  courts 
presume  grants  in  analogy  to  the  statute  of  limitations. 
Sometimes  these  presumptions  are  held  to  be  conclusive,  at 
others,  open  to  be  rebutted.  The  line  between  conclusive 
and  disputable  presumptions  is  not  well  defined."  The  con- 
clusion of  Poland,  C.  J.,  is,  that  "  rights  to  easements  ac- 
quired by  long  possession  ought  to  stand  on  the  same  ground 
as  rights  by  possession  in  lands.  The  real  principle  under- 
lying the  right  is  the  same,  precisely,  on  which  the  statute  of 
limitations  stands."  And  while  any  presumption  arising 
from  long  enjoyment  may  be  rebutted  in  various  ways,  he 
concludes,  "  that,  in  substance,  the  presumption  arising  from 
such  long-continued  possession,  unrebutted,  is  a  presump- 
tion of  law,  and  that  it  is  conclusive  evidence,  or  sufficient 

1  Parker  i^.  Footc,  19  Wend.  309;  Curtis  v.  Keeslcr,  14  Barb.  511.  See  also 
Cooper  V.  Smith,  9  Serf,'.  &  R.  2f>;  Hall  v.  M'Leod,  2  Mete.  Ivy.  98. 

2  Traey  v.  Atlierton,  3G  Verm.  503. 

3  32  Verra.  183. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  109 

evidence  to  warrant  the  court  in  holding  that  it  confers  a 
right  on  the  possessor  to  the  extent  of  his  use."  But  the 
question,  after  all,  seems  to  be  one  rather  of  form  than  sub- 
stance, and  mainly  affecting  the  manner  of  instructing  a 
jury,  upon  the  trial  of  an  issue  depending  upon  a  long  en- 
joyment of  the  thing  claimed  as  an  easement. 

And  with  the  limitations  and  explanations  above  stated, 
this  rule  of  law  may  now  be  consider(|(i  as  well  settled,  al- 
though Mr.  Dane  asks :  "  Whence  comes  this  modern  doc- 
trine of  presuming  ?  Not  from  any  statutes,  nor  from  the 
books  of  the  common  law,"  and  declares  that  it  "  is  of  mod- 
ern date."  ^  But  it  must  now  be  considered  as  established 
law. 

9.  It  may  be  further  remarked,  that,  where  a  'vt'ay  is 
claimed  by  prescription,  the  character  and  extent  of  it  is 
fixed  and  determined  by  the  user  under  which  it  is  gained. 
"  The  extent  of  a  usage  of  a  way  is  evidence  only  of  a  right 
commensurable  with  the  use."  And  it  was  accordingly 
held,  that,  where  the  proof  by  usage  was  of  a  carriage-way, 
it  did  not  necessarily  establish  a  right  of  way  for  cattle, 
though  it  might  be  competent  evidence  to  go  to  a  jury,  in 
connection  with  other  evidence,  in  establishing  the  extent  of 
the  right  claimed. ^ 

Where,  therefore,  one  acquired  a  right  of  way,  by  user,  to 
a  wood-lot,  to  take  off  the  wood,  it  was  held  that  he  could 
not  use  it  for  other  purposes  after  the  wood  had  been  taken 
off.3 

So,  if  one  acquire  a  right  to  corrupt  the  water  of  a  stream 
by  one  use,  or  to  a  limited  extent,  it  will  not  avail  him  if  he 
corrupts  it  in  a  different  manner  or  to  a  greater  extent.* 

1  3  Dane,  Abr.  55.  It  is  stated  by  Bell,  J.,  in  Wallace  v.  Fletcher,  10  Foster, 
446,  that  the  Court  of  Chancery  was  the  first  to  adopt  this  doctrine  of  presuming 
the  existence  and  loss  of  a  deed  in  1707  ;  but  that  it  was  not  till  1761  that  the 
courts  of  common  law  adopted  it. 

2  Balhird  v.  Dyson,  1  Taunt.  279;  Allan  v.  Gomme,  11  Adolph.  &  E.  759; 
Giiter,  Bracton,  99. 

3  Atwater  v.  Bodfish,  11  Gray,  152. 

^    *  Holnian  v.  Boiling  Spring  Co.,  1  M'Carter,  346. 


110      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

Where  a  water-way  had  been  used  to  bring  goods  to  a 
tavern-yard  for  the  use  of  the  tavern,  it  did  not  authorize 
the  use  of  the  way  for  otlier  occupants  of  the  land  and  other 
purposes  than  the  occupancy  of  the  tavern.^ 

10.  But  if  a  way  is  created  by  express  grant,  user  is  not 

evidence  to  restrict  the  usual  import  of  the  terms 
[*73]  of  the  *grant.     But  if  the  grant  is  lost,  usage  alone 

indicates  the  extent  of  the  way.  All  prescriptions  are 
stricti  juris ;  a  way  for  carriages  includes  a  horse-way,  but 
not  a  drift-way  for  cattle.  The  use  of  a  way  for  pigs  does 
not  imply  a  right  of  way  to  drive  oxen.^ 

And  where  the  way  claimed  was  a  general  right  by  pre- 
scription, it  was  necessary  to  show  a  user  of  it  for  all  pur- 
poses, time  out  of  mind.  But  if  it  is  shown  that  the  defend- 
ant, and  those  under  whom  he  claims,  have  used  the  way 
whenever  they  have  required  it,  it  is  such  evidence  of  a 
general  right  to  use  it  for  all  purposes,  that  a  jury  might 
infer  from  it  such  right.^ 

11.  If  now  we  consider  in  what  cases  prescriptions  may 
be  gained,  and  by  what  means,  it  will  be  found,  in  the  first 
place,  that  prescriptions  can  only  be  for  things  which  are 
the  subjects  of  grant.  And  though  sometimes  the  term  is 
loosely  applied  to  titles  to  corporeal  hereditaments,  when 
used  with  technical  accuracy  it  is  predicated  of  incorporeal 
hereditaments  alone.* 

12.  To  constitute  a  title,  therefore,  by  prescription,  there 

1  Bower  v.  Hill,  2  Bing.  N.  C.  339. 

2  Ballard  v.  Dyson,  1  Taunt.  279,  288.  See  Co.  Entr.  5,  6,  for  form  of  plead- 
ing a  prescriptive  right  of  way. 

2  Cowling  V.  Iligginson,  4  Mccs.  &  W.  245.  See  Allan  v,  Gomme,  11  Adolph. 
&  E.  759  ;  Dare  v.  Hcathcote,  36  Eng.  L.  &  Eq.  564.  Smith  v.  Miller,  11  Gray, 
148. 

*  1  Lomax,  Dig.  614  ;  Potter  v.  North,  1  Ventr.  383,  387  ;  Strickler  v.  Todd,  10 
Scrg.  &  R.  69  ;  Carlyon  v.  Lovering,  1  Hurlst.  &  N.  784  ;  Kochdale  Canal  Co.  v. 
lladrliffo,  18  Q.  B.  287,  314  ;  Davis  v.  Brigham,  29  Me.  391  ;  Cortelyoii  v.  Van 
Brundt,  2  Johns.  357  ;  Giiyetty  v.  Bethunc,  14  Mass.  53  ;  Thomas  v.  Marshfield, 
13  Pick.  240;  M'Crcady  v.  Thomson,  Dudley,  131  ;  Golding  v.  Williams,  Dud- 
ley, 92  ;  Pearsall  v.  Post,  20  Wend.  Ill,  129;  Ferris  i'.  Brown,  3  Barb.  105  ;  2 
Sharsw.  Blackst.  264,  note.     Ilill  v.  Lord,  48  Maine,  96  ;  Luttrcl's  case,  4  Co.  87. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  Ill 

must  be  a  thing  claimed  Avhicli  may  be  granted,  and  a  per- 
son to  whom  a  grant  may  be  made,  and  who  may  be  a  party 
to  such  grant.  And  in  this  consists  one  great  distinction 
between  a  proper  prescription  and  a  custom,  the  latter  being 
applicable  to  rights  by  way  of  easement  which  the  public 
or  the  inhabitants  of  a  particular  locality  may  acquire 
by  *long  enjoyment,  without  having  been  incorporated  [*74] 
or  capable  of  collectively  becoming  grantees  in  any 
deed  of  conveyance.^ 

13.  Prescriptions  and  customs  both  relate  to  incorporeal 
hereditaments,  and  the  main  difference  between  them  is,  that 
prescriptions  are  always  personal,  and  belong  to  some  person, 
using  the  term  in  its  broad  sense  as  including  corporations, 
while  customs  are  always  local,  and  predicated  of  something 
to  be  enjoyed  by  individuals  living  in  certain  districts.  And 
accordingly  it  is  said :  "  Another  difference  was  taken  and 
agreed  between  a  prescription,  which  always  is  alleged  in  the 
person,  and  a  custom,  which  always  ought  to  be  alleged  in 
the  land ;  for  every  prescription  ought  to  have,  by  common 
intendment,  a  lawful  beginning ;  but  otherwise  it  is  of  a 
custom,  for  that  ought  to  be  reasonable,  but  need  not  be  in- 
tended to  have  a  lawful  beginning."  ^  By  this  it  would 
seem  that  "  lawful  beginning  "  must  imply  a  beginning  by 
means  of  an  original  grant,  there  being  in  the  case  of  a  pre- 
scription some  one  capable  of  taking  the  grant,  whereas  in 
case  of  custom  there  are  no  such  grantees  capable  of  taking, 
from  the  very  fact  that  it  belongs  to  such  and  to  such  only 
as,  for  the  time  being,  belong  to  a  particular  locality,  not  as 
successors  of  persons  gone  before,  but  as  dwellers  there,  ir- 
respective of  the  circumstances  under  which  they  became 
such.  Another  thing  may  be  repeated  for  the  purpose  of  ex- 
planation. Prescriptions  are  often  more  extensive  in  their 
operation  upon  the  rights  of  the  owners  of  estates  out  of 

1  Lockwood  V.  Wood,  6  Q.  B.  50,  64;  Smith  v.  Gatewood,  Cro.  Jac.  152; 
Grimstead  v.  Marlowe,  4  T.  R.  717  ;  Curtis  v.  Kccslcr,  14  Barb.  511  ;  Perley  v. 
Langley,  7  N.  H.  233.     Kaposi,  chap.  3,  sect.  10. 

2  Lockwood  V.  Wood,  6  Q.  B.  50,  66 ;  Litt.,  ^  170 ;  Co.  Litt.  113  b. 


112  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cii.  I. 

which  they  are  enjoyed,  than  customs,  since  in  the  case  of 
prescriptions  it  is  supposed  the  parties  in  interest  settled  the 
terms  and  extent  of  the  grant  made  by  the  one  to  tlie  other, 
whereas  in  the  case  of  customs  no  such  contract  or 
[*75]  agreement  could  have  been  *made,  and  the  law  sup- 
plies the  only  limit,  and  requires  that  it  should  be 
reasonable.  Thus  the  difference  which  has  been  spoken  of 
between  a  prescription  for  a  profit,  and  a  claim  of  profit  a 
prendre  under  a  custom.  The  court  hold  such  a  custom 
unreasonable,  for  if  one  of  the  dwellers  in  a  particular  vill 
or  neighborhood  may  carry  off  turf,  soil,  or  other  parts  of 
the  land  of  another,  others  may  do  the  same  without  limit 
or  stint,  and  the  effect  may  be  that  it  may  all  be  carried 
away  or  destroyed.^ 

"  That  which  is  a  matter  of  interest,  as  the  taking  a  profit 
from  the  soil,  must  from  its  existence  have  some  person  in 
whom  it  is,  and  a.  flux  body,  which  has  no  entirety  or  perma- 
nence, cannot  take  that  interest  which,  by  the  supposition, 
is  immemorial  and  permanent,  because,  from  its  nature,  it 
cannot  prescribe  for  anything."  ^ 

14.  And  it  may  be  added,  though  already  implied  if  not 
expressly  stated,  that,  in  order  to  establish  a  prescriptive 
right,  it  must  be  claimed  under  and  through  some  one  who 
had  a  right  to  grant  or  create  the  easement  claimed.  Thus, 
where  a  company  were  authorized  by  act  of  Parliament  to 
construct  and  operate  a  canal  for  public  use,  and  the  de- 
fendant erected  a  steam-engine  upon  its  banks,  and  drew 
water  therefrom  for  operating  the  same,  and  to  an  action 
for  doing  this  he  pleaded  a  prescriptive  right,  by  long  enjoy- 
ment, the  court  held  that  such  right  could  not  be  main- 

1  Jones  V.  Eobin,  10  Q.  B.  620 ;  Rogers  v.  Brenton,  Ibid.  26,  60  ;  Gateward's 
case,  6  Rep.  b9  ;  Day  v.  Savadge,  Hob.  85  ;  Co.  Litt.  110,  b,  113  ;  Bell  v.  War- 
dcU,  Willes,  202;  Cortelyou  v.  Van  Brundt,  2  Johns.  357  ;  Donnell  v.  Clark,  19 
Me.  174;  2  Blackst.  Comm.  263,  264;  ante,  sect.  1,  ^\.  6.  Nudd  v.  Hobbs,  17 
N.  H.  527. 

2  Rogers  v.  Brenton,  10  Q.  B.  26,  60 ;  Day  v.  Savadge,  Hob.  86  ;  Gateward's 
case,  6  Rep.  59. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  113 

tained,  for  it  implied  an  original  grant  thereof  by  the  com- 
pany to  him,  and  they  had  no  right  to  make  any  such  grant, 
or  to  use  the  water  for  any  purpose  excejit  for  that  of  a 
canal.  1 

15.  Thus,  in  the  case  of  Lockwood  v.  Wood,  the 
court  *say :  "  A  custom  which  has  existed  from  time  im-  [*76] 
memorial,  without  interruption,  within  a  certain  place, 
and  which  is  certain  and  reasonable  in  itself,  obtains  the 
force  of  a  law,  and  is,  in  effect,  the  common  law  within  that 
place  to  which  it  extends,  though  contrary  to  the  general  law 
of  the  realm."  "  A  custom  that  every  inhabitant  of  such  a 
town  shall  have  a  way  over  such  land,  either  to  church  or 
market,"  is  said  to  be  good,  because  "  they  are  an  easement, 
and  no  profit."  And  it  was  held,  in  the  same  case,  that 
"  the  inhabitants  of  E.,"  not  being  incorporated,  could  not 
prescribe  for  an  easement  in  alieno  solo,  nor  claim  it  by  a 
modern  grant.  The  court,  by  way  of  illustration,  cite  the 
case  of  a  custom  for  all  fishermen  within  a  certain  precinct 
to  dry  their  nets  upon  the  land  of  another,  as  being  a  good 
one,  though  a  grant  of  such  an  easement  to  fishermen  with- 
in the  district,  eo  nomine,  would  be  held  void.^ 

And,  in  accordance  with  the  doctrine  above  stated,  the 
language  of  the  court,  in  the  case  last  cited,  is :  "  In  case 
of  a  custom,  it  is  unnecessary  to  look  out  for  its  origin.  But 
in  case  of  a  prescription,  which  founds  itself  upon  the  pre- 
sumption of  a  grant  that  has  been  lost  by  process  of  time,  no 
prescription  can  have  had  a  legal  origin  where  no  grant 
could  have  been  made  to  support  it."  ^ 

As  will  be  seen  more'  fully  hereafter,  inhabitants  of  local- 
ities like  towns  when  incorporated  may  prescribe  for  ease- 
ments in  the  same  way  as  individuals.  But  a  few  cases  are 
cited  below  to  show  the  extent  to  which  inhabitants  of  par- 
ticular localities  may  claim  easements  by  custom,  though 
not  incorporated. 

1  Rochdale  Canal  Co.  v.  Radcliffe,  18  Q.  B.  287. 

2  Lockwood  V.  Wood,  6  Q.  B.  50,  65.  ^  ^qq  post,  chap.  3,  sect.  10. 

8 


114  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cir.  I. 

16.  The  test  seems  to  be  the  reasonableness  or  unreason- 
ableness of  the  claim,  having  reference  to  tlie  character  and 
condition  of  those  who  are  to  enjoy  the  right  claimed,  and 
to  the  fact  which  forms  a  leading  and  discriminating  distinc- 
tion between  customs  and  prescriptions,  that  while  the 

[*77]  latter  *may  be  released  or  extinguished  by  the  act  of 
those  who  are  entitled  to  the  right,  the  former  cannot 
be,  since  the  right  attaches  to  whoever,  for  the  time  being, 
happens  to  live  or  dwell  in  a  certain  locality  ;  nor  can  one  or 
more  of  these  bind  those  who  may  afterwards  take  their 
places,  by  any  act  of  release  which  they  may  see  fit  to  exe- 
cute.i 

And  in  respect  to  what  is  reasonable,  courts  do  not  ex- 
tend the  rights  and  privileges  which  are  valid  by  custom  to 
the  public  at  large,  but  restrict  them  to  such  as  live  or  dwell 
in  particular  neighborhoods.  Thus,  in  Fitch  v.  Rawling,  it 
was  held  that,  though  a  custom  for  all  the  inhabitants  of  a 
parish  to  enter  upon  a  certain  close  and  play  at  cricket  was 
good,  it  could  not  be  claimed  as  a  good  custom  for  all  the 
people  of  England  to  do  this.  So  it  would  be  bad  if  the 
claim  was  in  favor  of  all  persons  happening  to  be  in  the 
parish  at  the  time  of  their  engaging  in  such  play.^ 

17.  So,  though  there  may  be  a  dedication  of  many  rights 
which  the  public  may  enjoy,  a  right  like  that  to  use  a  land- 
ing-place upon  the  shore  of  navigable  waters  for  depositing 
articles  such  as  wood  and  the  like  cannot  be  claimed  for  the 
public,  nor  for  all  the  inhabitants  of  a  state,  by  prescription 
or  custom.  The  court,  in  Pearsall  v.  Post,  say  :  "  If  sub- 
sequent English  cases  have  allowed  customary  and  prescrip- 
tive rights  to  invade  and  exclusively  enjoy  the  soil  of  another, 
to  permanent  inhabitants  of  a  certain  town,  they  have  never 
extended,  but  uniformly  denied  it  to  the  inhabitants  of  the 
kingdom  generally None  of  the  English  cases,  that  I 

1  Grimstead  v.  Marlowe,  4  T.  R.  717;  Mellor  v.  Spatcman,  1   Wins.  Saund. 
341,  note  3. 
•^  Filcli  V  Rawling,  2  II.  Blackst.  393. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  115 

find,  have  ever  allowed  a  custom  permanently  to  enjoy  the 
soil  of  another  to  the  inhabitants  of  the  whole  nation.  On 
the  contrary,  they  hold  that  the  English  law  denies  such 
right."  1  "  The  law  is  well  settled,  that  a  customary  ac- 
commodation in  the  lands  of  another,  to  bo  good, 
*must  be  confined  to  the  inhabitants  of  a  local  dis-  [*78] 
trict,  and  cannot  be  extended  to  the  whole  communi- 
ty or  people  of  the  state."  ^  It  was  accordingly  held,  that 
the  public  could  not  gain  a  right  to  deposit  manure,  wood, 
and  the  like,  on  a  public  landing-place  on  the  bank  of  navi- 
gable waters ;  and  that  no  one  could  claim  such  a  right  ex- 
cept in  favor  of  particular  farms,  so  that  whoever  claims  it 
by  long  usage  must  prescribe  in  a  que  estate.^ 

18.  Not  only  must  the  custom  be  reasonable  in  its  subject- 
matter,  but  in  the  mode  of  its  enjoyment,  in  order  to  be  a 
lawful  one.  Thus  it  was  held  that  a  custom  would  not  be 
sustained  by  law,  for  all  the  inhabitants  of  a  certain  town  or 
county  to  walk  or  ride  over  a  certain  close  at  such  times  of 
year  as  the  owner  had  corn  growing  or  standing  thereon,  be- 
cause it  would  tend  to  destroy  the  profits  thereof  altogether.'* 

But  a  custom  for  all  the  inhabitants  of  C,  to  go  upon  a 
certain  close  for  the  purpose  of  horseracing,  on  a  certain  day 
in  the  year,  was  held  to  be  a  good  one.^ 

So  a  custom  for  the  inhabitants  of  a  place,  or  the  owners 
of  a  particular  estate,  to  pass  over  the  soil  of  another  wher- 
ever their  convenience  requires,  and  where  least  prejudicial 
to  the  owner,  would  be  an  unreasonable  one,  being  too  in- 
definite and  uncertain.^ 

And  where  one  claimed  a  right  to  extend  his  bay-window 
beyond  the  line  of  his  house  and  over  a  part  of  the  street  by 

1  Pearsall  v.  Post,  20  Wend.  Ill,  128  ;  Manning  t'.  Wasdale,  5  Adolpli.  &  E. 
758. 

2  Post  V.  Pearsall,  22  Wend.  425,  432,  per  Walicorth,  Ch. 

3  Ibid.  4.34  ;  State  v.  Wilson,  42  Me.  9  ;  Gardiner  v.  Tisdale,  2  Wise.  153. 
*  Bell  V.  Wardwell,  Willes,  202. 

^  Mounsey  v.  Isniay,  25  Law  Rep.  370. 
^  Jones  V.  Percival,  5  Pick.  485. 


116  THE   LAW    OF   EASEMENTS   AND   SERVITUDE^.  [Ch.  I. 

the  custom  of  the  city  in  whicli  he  lived,  the  court  held  that 
if  such  householder  had  no  freehold  in  the  soil  of  the  street, 
the  custom  was  an  unreasonable  one  and  not  to  be  sus- 
tained.i 

So  a  custom,  in  order  to  be  good,  must  be  in  favor  of  a 
class  of  persons  who  are  susceptible  of  being  identified  and 
ascertained  ;  for  where  a  right  by  custom  was  claimed  in  fa- 
vor of  the  poor  and  indigent  householders  of  a  certain  village 
to  take  rotten  wood,  as  well  as  boughs  of  trees,  in  a  certain 
close,  it  was  held  to  be  bad  on  two  grounds  ;  —  1st,  because 
it  was  wholly  undefined  who  came  under  such  a  description, 
and  could  avail  themselves  of  it ;  and,  2d,  because  it  is  a 
claim  to  take  the  profits  of  land,  which  can  only  be  pre- 
scribed for  in  a  que  estate  P" 

Among  the  instances  of  customary  easements,  as 
[*79]  *distinguished  from  those  by  prescription,  which  have 
been  recognized  as  valid,  are  a  right  of  way  to  a 
church,^  to  dance  upon  a  close  for  recreation,*  to  dry  or 
mend  fishermen's  nets  upon  a  close,^  a  right  of  way  to  a 
market,  and  a  right  to  be  quit  of  toll,  a  right  to  turn  one's 
plough  upon  another's  land,  a  right  of  a  gateway  or  of  a 
watercourse,^  a  right  to  take  water  from  a  spring  or  well  in 
another's  land  for  culinary  and  domestic  purposes,"  a  right  to 
a  public  landing-place  to  land  upon  and  pass  over,  but  not 
to  occupy  for  storage  of  articles.^ 

19.    Whatever  may  be  claimed  by  custom  may  also  be 

1  Codman  v.  Evans,  5  Allen,  310. 

2  Selby  V.  Robinson,  2  T.  E.  758. 

3  Smith  V.  Gatewood,  Cro.  Jac.  152. 

*  Abbot  V.  Weekly,  1  Lev.  176;  Bland  v.  Lipscombe,  4  Ellis  &  B.  714,  note; 
ante,  sect.  1,  pi.  6. 

5  Baker  v.  Biereman,  Cro.  Car.  418. 

6  Pain  V.  Patrick,  3  Mod.  289,  294  ;  Perley  v.  Langlcy,  7  N.  H.  233  ;  Common- 
wealth V.  Newbury,  2  Pick.  59,  per  Putnam,  J. ;  17  Vincr,  Abr.  256,  Prescription, 
A,  note. 

7  Race  V.  Ward,  4  Ellis  &  B.  702.  Lord  Campbell  cites  Year  B.  15  Edw.  IV., 
fol.  29,  pi.  7  ;  Weekly  .v.  Wildman,  1  Ld.  Raym.  405  ;  Emans  v.  Tiunbull,  2 
Johns.  313. 

**  Coolidtro  V.  Learned,  8  Pick.  511  ;  Pearsal!  v.  Post,  20  Wend.  Ill,  128. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  117 

claimed  by  prescription.^  But  the  extent  of  the  claim  which 
may  be  made  by  the  latter  is  much  broader  tlian  that  by  the 
former,  and  this  is  commonly  illustrated  by  the  general  prop- 
osition that  the  one  extends  to  profits  a  prendre,  the  other 
does  not.^ 

Among  the  prescriptions,  but  similar  in  many  respects  to 
rights  by  custom  coming  under  the  class  o[ profits  a  prendre, 
are  rights  in  the  inhabitants  of  a  town,  if  incorporated,  to 
take  sand  or  soil,  stone,  grass,  or  turves  on  another's  land, 
such  as  sand,  for  instance,  that  is  washed  up  by  tlie  sea;^ 
or  to  pass  over  land  to  angle  and  fish.*  Or  to  take  sea-weed 
from  another's  land,^  or  to  pile  wood  or  lumber  for  pur- 
poses of  sale  or  shipment.'^ 

*  But,  in  the  language  of  Maule,  J.,  "  A  claim  to  [*80] 
enter  upon  another  man's  land,  and  dig  a  hole  there, 
can  hardly  be  called  o.  profit  a  prendreJ'^ '' 

20.  In  order  to  claim  a  right  of  profit  a  prendre,  by  the 
inhabitants  of  a  town,  it  must  be  done  by  them  in  their 
corporate  capacity,  and  must  be  prescribed  for  in  a  que 
estate.^  But  to  gain  this  right  requires  more  than  the  in- 
dividual acts  of  the  inhabitants.  It  must  be  done  as  a  cor- 
porate act.  It  was,  accordingly,  held  that  the  taking  of  sea- 
weed, or  landing  upon  a  beach  by  individual  inhabitants  of 
a  town,  was  no  evidence  of  a  prescriptive  right  to  do  this 

1  Perley  v.  Langley,  7  N.  H.  233 ;  Cortelyou  v.  Van  Brundt,  2  Johns.  357  ; 
Pearsall  v.  Post,  20  Wend.  Ill,  129. 

2  Hardy  v.  Hollyday,  cited  in  4  T.  R.  718,  719  ;  1  Wms.  Saund.  341,  note  3  ; 
Gateward's  case,  6  Rep.  59;  Waters  v.  Lilley,  4  Pick.  145;  Post  v.  Pearsall,  22 
Wend.  425. 

3  Perley  v.  Lang^ley,  7  N.  H.  233  ;  Blewett  v.  Tregonning,  3  Adolpli.  &  E.  554. 
*  Waters  v.  Lilley,  4  Pick.  145. 

5  Hill  V.  Lord,  48  Maine,  100 ;  Nudd  v.  Hobbs,  17  N.  H.  527. 

6  Littlefield  v.  Maxwell,  31  Maine,  134. 
■?  Peter  v.  Daniel,  5  C.  B.  568. 

^  Grimstead  v.  Marlowe,  4  T.  R.  718,  per  Keiujon,  C.  J.  ;  Abbot  v.  Weekly, 
1  Lev.  176  ;  Hardy  v.  Hollyday,  cited  in  4  T.  R.  719  ;  Perley  v.  Langley,  7  N.  H. 
233  ;  Hill  v.  Lord,  48  Maine,  98  ;  Foxhall  v.  Venables,  Cro.  Eliz.  180;  Fowler  r. 
D.ale,  lb.  362 ;  Weekly  v.  AVildman,  1  Ld.  Raym.  405  ;  Whittier  v.  Stockman,  2 
Bulst.  87. 


118  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Cn.  I 

in  their  corporate  capacity. ^  Nor  would  it  be  claimed  by 
custom,  being  ix  profit  a  prendre P' 

In  respect  to  the  distinction  between  easements,  properly 
so  called,  and  a  profit  a  prendre^  when  claimed  by  individuals, 
it  is  said  by  "Walworth,  Ch.,  that  "  such  easements  are  either 
personal  and  confined  to  an  individual  for  life  merely,  or  are 
claimed  in  reference  to  an  estate  or  interest  of  the  claimant 
in  other  lands  as  the  dominant  tenement ;  for  a  profit  a 
prendre  in  the  land  of  another,  when  not  granted  in  favor  of 
some  dominant  tenement,  cannot  properly  be  said  to  be  an 
easement,  but  an  interest  or  estate  in  the  land  itself."'^ 

But  an  easement  like  that  of  taking  water  from  a  spring 
or  well  on  another's  land  is  not  a  profit  a  prendre,  though 
an  interest  in  land  and  an  incorporeal  hereditament,  and 
would  be  the  subject  of  grant  or  prescription,  and  might 
be  prescribed  for  by  reason  of  occupying  an  ancient  mes- 
suage, though  the  prescription  must  always  be  laid  in  him 
who  has  the  inheritance.*  But  one  cannot  prescribe 
[*81]  *except  in  his  own  person  for  an  easement  proper,  in 
gross,  since  such  a  right  cannot  be  created  by  grant 
so  as  to  be  assignable  or  inheritable."' 

21.  And  if  one  prescribes  in  a  que  estate,  he  can  claim 
nothing  under  his  prescription  but  such  things  as  are  inci- 
dent, appendant,  and  appurtenant  to  lands.*^ 

1  Sale  V.  Pratt,  19  Pick.  191 ;  Green  v.  Chelsea,  2-t  Pick.  71 ;  Nudd  v.  Hobbs, 
17  N.  H.  524. 

-  Hill  V.  Lord,  Sup. 

3  Post  V.  Pearsall,  22  Wend.  425,  4.32  ;  ante,  sect.  1,  pi.  7,  12.  See  Ferris  v. 
Brown,  3  Barb.  105. 

*  Manning,'  v.  Wardale,  5  Adolph.  &  E.  758  ;  Tyler  v.  Bennett,  Ibid.  377.  See 
Hill  V.  Lord.  Sup.  as  to  taking  water  being  a  profit  a  prendre.  Perley  v.  Langley, 
7  N.  H.  2.33  ;  Co.  Litt.  121  a ;  2  Sharsw.  Blackst.  264,  note  ;  Pain  v.  Patrick,  3 
Mod.  289,  294  ;  Smith  v.  Kinard,  2  Hill,  So.  C.  642  ;  Baker  v.  Brereman,  Cro. 
Car.  419. 

5  Ackroyd  v.  Smith,  10  C.  B.  164,  187.  But  see  White  v.  Crawford,  10  Mass. 
183,  as  to  ways  in  gross,  and  ante,  pp.  *8,  *10  ;  Bailey  v.  Stephens,  12  C.  B.,  n.  s., 

S  110. 

«  Donnell  v.  Clark,  19  Me.  174  ;  Ackroyd  v.  Smith,  10  C.  B.  164,  188.  Sar- 
gent V.  Gutterson,  13  N.  H.  467  ;  Muskctt  v.  Hill,  5  Bing.  N.  C.  G94. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  119 

In  Wickham  v.  Hawker,  it  was  held  that  the  liberty  of 
fowling,  hawking,  and  fishing,  wlierc  one  takes  fish  to  his 
own  use,  are  profits  a  prendre,  and  by  a  grant  to  one  and 
his  heirs  of  cither  of  those  rights,  it  may  be  exercised  by  him 
or  his  servants.  Whereas,  a  personal  license  to  hunt  and 
the  like  could  only  be  exercised  by  the  party  himself  to 
whom  it  was  given. ^ 

22.  Whether  one  can  set  up  a  claim  to  a  right  in  anoth- 
er's land,  both  by  prescription  and  by  custom,  or  must  rely 
upon  one  as  being  inconsistent  with  a  claim  by  the  other, 
was  a  question  which  Denman,  C.  J.  declined  to  answer,  in 
Blewett  V.  Tregonning.^  But  in  Kent  v.  Waite,^  the  court 
use  this  language  :  "  It  has  been  urged  that  the  evidence 
proved  a  custom,  and  not  a  prescriptive  right ;  but  we  think 
it  proved  both  a  prescriptive  title  in  the  plaintiff  and  a  right 
by  custom  in  others,  and  their  rights  are  not  inconsistent. 
Different  persons  may  have  a  right  of  way  over  the  same 
place  by  different  titles,  one  by  grant,  another  by  prescrip- 
tion, and  a  third  by  custom,  and  each  must  plead  his  own 
title ;  and  if  he  proves  it,  it  is  sufficient,  although  he  may 
also  prove  a  title  in  another,  provided  the  titles  are  distinct 
and  not  inconsistent." 

*Bearing  in  mind  that  it  is  now  settled  beyond  a  [*82] 
doubt  that  the  inhabitants  of  a  town,  in  their  corpo- 
rate capacity,  are  capable  of  taking  an  easement  or  other  in- 
corporeal hereditament,  and  that  they  may  become  seized  of 
a  right  by  grant,  prescription,  or  reservation,'^  the  following 
language  of  the  court,  in  Perley  v.  Langley,^  presents,  per- 
haps, as  good  a  summary  of  the  law,  as  it  bears  upon  the 

1  Wickham  v.  Hawker,  7  Mecs.  &  W.  63 ;  ante,  pp.  *7,  *28.  Davies'  case,  3 
Mad.  246 ;   Wolfe  v.  Frost,  4  Sandf.  ch.  93. 

2  Blewett  V.  Tregonuing,  3  Adolpli.  &  E.  554. 

3  Kent  V.  Waite,  10  Pick.  138. 

*  Commonwealth  v.  Low,  3  Pick.  408  ;  Valentine  v.  Barton,  22  Pick.  75  ; 
Green  v.  Chelsea,  24  Pick.  71  ;  Rose  v.  Bunn,  21  N,  Y.  275  ;  Smith  v.  Kinard, 
2  Hill,  So.  C.  642;  Hardy  v.  Hollyday,  cited  in  4  T.  R.  718,  719;  Avery  r. 
Steward,  1  Cusli.  496. 

5  Perley  v.  Langley,  7  N.  H.  235. 


120  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cir.  I. 

distinction  between  public  rights  claimed  by  custom  and  like 
rights  claimed  by  prescription,  and  such  as  are  claimed  by 
individuals,  as  can  be  readily  found.  "  If  these  rights  are 
common  to  any  manor,  district,  hundred,  parish,  or  county, 
as  a  local  right,  they  are  holden  as  a  custom.  If  the  same 
rights  are  limited  to  an  individual  and  his  descendants,  to  a 
body  politic  and  its  successors,  or  are  attached  to  a  particu- 
lar estate,  and  are  only  exercised  by  those  who  have  the 
ownership  of  such  estate,  they  are  holden  as  a  prescription, 
which  prescription  is  either  personal  in  its  character  or  is  a 
prescription  in  a  que  estate^ 

But  individuals  cannot  gain  a  prescriptive  right  of  way  by 
passing  over  an  open  passage-way  across  a  private  estate 
where  the  user  is  not  in  connection  with  some  estate  of 
their  own.^ 

23.  Like  a  custom,  a  prescription  to  be  good  must  be  a 
reasonable  one.  Thus,  where  one  owning  a  brick-kiln  un- 
dertook to  justify  carrying  away  from  another's  land  a  quan- 
tity of  clay,  under  a  prescriptive  right  to  dig  and  carry  away 
therefrom  clay  indefinitely  as  to  quantity,  it  was  held  to  be 
bad,  as  it  was  virtually  prescribing  for  a  right  to  carry  away 
the  entire  close.^  So  is  a  prescription  to  cut  all  the  wood  and 
timber  on  a  lot  of  land  void,  because  of  its  being  unreason- 
able.-^ So  where  one  owning  a  mine,  undertook  to  claim  a 
prescriptive  right  to  excavate  coal,  though  by  so  doing  he 
undermined  and  injured  an  ancient  dwelling-house,  it  was 
held  that  it  could  not  be  sustained,  because  it  was  not  to  be 
presumed,  in  the  absence  of  positive  evidence  of  a  grant, 
that  the  tenant  of  such  a  house  would  ever  have 
*comc  into  such  an  agreement,  it  being  unreasonable  [*83] 
from  its  being  destructive  in  its  effect.^     So  a  right 

1  Grossman  v.  Vignaud,  14  Louis,  173  ;  In  State  v.  McDaniel,  8  Jones,  L. 
284. 

'■^  Clayton  v.  Corby,  5  Q.  B.  415,  422;  Wilson  v.  Willes,  7  East,  121. 

3  Bailey  v.  Stephens,  12  C.  B.,  n.  s.,  108.  See  Iloskins  v.  Kobins,  2  Wms. 
Saund.  323. 

*  Hilton  V.  Granville,  5  Q.  B.  701,  730.  See  Rowbotham  v.  Wilson,  6  Ellis 
&  B.  593  ;  B.  c,  8  H.  of  L.  Gas.,  348  ;  Humphries  v.  Brogden,  12  Q.  B.  739.     See 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  121 

cannot  be  claimed  by  prescription  to  pass  over  anotlicr's  es- 
tate in  several  different  directions,  to  suit  the  convenience  of 
him  who  claims  the  right  of  way.^ 

As  nothing  but  incorporeal  hereditaments  can  be  claimed 
by  prescription,  it  was  held  that  a  man  could  not  prescribe 
for  a  right  to  erect  a  building  on  another  man's  land  for  the 
purpose  of  fishing  in  the  adjacent  waters,  nor  for  a  right  to 
use  a  saw-mill  on  another's  land.  Such  rights  are  not  the 
subjects  of  prescription,  in  the  sense  in  which  the  term  is 
properly  applied,  and  an  exclusive  right  to  possession  of  land 
cannot  be  established  by  prescription.^ 

But  a  right  to  convey  water  across  the  land  of  another  to 
one's  mill  is  an  incorporeal  hereditament,  for  an  injury  to 
which  trespass  qu.  cl.  would  not  lie.^ 

One  might  prescribe  for  the  privilege  of  taking  coals  for 
use  in  another's  land,  but  he  could  not  prescribe  for  a  vein 
of  coal  itself  lying  in  another's  land.* 

And  it  is  no  answer  to  a  claim  of  way  by  prescription,  that 
the  claimant  lias  another  way  to  the  premises.^ 

It  may  be  remarked,  in  passing,  that,  in  setting  forth  a 
claim  of  an  easement  by  prescription,  the  same  particularity 
should  be  observed  as  if  the  person  claimed  by  express 
grant.^ 

A  tenant  at  will  or  for  years  may  prescribe  for  a 
right  *of  way,  but  it  must  be  done  in  the  name  of  his  [*84] 
landlord,  the  tenant  of  the  fee." 

24.   In  considering  user  and  enjoyment  as  evidence  of  the 

also  Blackett  v.  Bradley,  1  B.  &  Smith,  954 ;  where  it  is  said  that  though  the 
reasoning  in  Hilton  v.  Granville  had  been  impugned,  the  case  itself  has  not  been 
overruled,  and  that  case  itself  was  also  decided  upon  it  as  an  authority. 

1  Jones  V.  Percival,  5  Pick.  485  ;  Brice  i;.  Randall,  7  Gill  &  J.  349 ;  Holmes  v. 
Seeley,  19  Wend.  507. 

2  Cortelyou  v.  Van  Brundt,  2  Johns,  357;  Ferris  v.  Brown,  3  Barb.  105; 
Donnell  v.  Clark,  19  Me.  174;  2  Sharsw.  Blackst.  263,  264,  note. 

3  Baer  v.  Martin,  8  Blackf.  317. 

*  Willvinson  r.  Proud,  11  Mees.  &  "W.  33.    Caldwell  v.  Copeland,  37  Pcnn.  431. 

5  Staple  V.  Hcydon,  6  Mod.  1  ;  Com.  Dig.  Chimin. 

6  Wright  V.  Rattray,  1  East,  377,  per  Dodderidge ;  Sloman  v.  West,  Palm. 
387  ;  po&t,  chap.  6,  sect.  2,  pi.  16. 

7  Smith  V.  Kinard,  2  Hill,  So.  C.  642. 


122  TIIE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cn.  I. 

possession  of  a  prescriptive  right,  it  will  be  proper  to  inquire 
what  the  nature  and  character  of  such  use  must  be,  in  order 
to  constitute  such  evidence,  before  attempting  to  apply  the 
same  to  the  different  classes  of  easements. 

In  the  first  place,  the  possession  or  enjoyment  of  what  is 
claimed  must  be  long  continued  as  well  as  peaceable, — 
"  long-ns  tisus,  nee  per  vim,  nee  elam,  nee  precario."  ^ 

What  shall  be  taken  to  be  a  sufficiently  long-  j^eriod  of  use 
or  enjoyment  to  create  a  prescription  or  presumptive  grant, 
in  the  modern  use  of  the  term,  is  understood  to  correspond 
with  the  local  period  of  limitation  for  quieting  titles  to 
land.2  In  England  it  is  twenty  years.^  So  it  is  in  South 
Carolina,-*  New  Jersey,^  North  Carolina,*^  Alabama,'  Ken- 
tucky ,s  Maine,^  Massachusetts,^"  and  New  York.^^  In  New 
Hampshire,  Rhode  Island,  Delaware,  Virginia,  Mississippi, 
Missouri,  Indiana,  Illinois,  Wisconsin,  and  Florida  the  rule 
would  be  the  same,  if,  as  is  doubtless  the  case,  the  period  of 
prescription  and  limitation  as  to  lands  is  the  same.^^ 

In  Vermont  it  is  fifteen  years. ^^    So  in  Connecticut.^* 
[*85]       *In  Texas  it  is  two  years. ^^     So  in  Louisiana,^^  Ar- 
kansas, and  lowa.^'' 

1  Bract,  fol.  222  h  ;  Co.  Litt.  114a;  Thomas  v.  Marshfield,  13  Pick.  240. 

2  1  Greenl.  Ev.,  §  17,  note;  Sherwood  v.  Burr,  4  Day,  244;  Polly  i-.*  McCall, 
37  Ala.  29. 

3  Wright  c.  Howard,  1  Sim.  &  S.  190,  203. 
*  Cuthbcrt  r.  Lawton,  3  M'Cord,  194. 

5  Campbell  v.  Smith,  3  Halst.  140. 

6  Felton  V.  Simpson,  11  Ired.  84  ;  Griffin  v.  Foster,  8  Jones  L.  339. 

■^  Stein  V.  Burden,  24  Ala.  130.  It  is  now  ten  years,  Wright  v.  Moore,  38  Ala. 
596. 

^  Manier  v.  Myers,  4  B.  Monr.  514. 

9  Rev.  Stat,  c  147,  §  14  ;  Pierre  ?;.  Fernald,  26  Me.  436. 

w  Sargent  v.  Ballard,  9  Pick.  251  ;  Gen.  St.  c.  91,  ^  33. 

11  Parker  v.  Foote,  19  Wend.  309  ;  Miller  v.  Garlock,  8  Barb.  153. 

1'^  Angell,  Limit.,  4th  ed.,  Appendix  of  Statutes.  Gentleman  v.  Soule,  32  111. 
278  ;  Evans  v.  Dana,  7  R.  L  311. 

13  Rogers  v.  Page,  Brayt.  169  ;  Tracy  v.  Athcrton,  36  Verm.  515. 

1*  Sherwood  (•.  Burr,  4  Day,  244. 

15  Haas  V.  Choussard,  17  Texas,  588. 

i*"'  Delahoussaye  ;•.  Judice,  13  La.  Aim.  587. 

1^  Angell,  Limit.,  4th  ed..  Appendix  of  Statutes. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  123 

In  Pennsylvania  it  is  twenty-one  years.^  So  in  Ohio.^  In 
Georgia  and  Tennessee  the  period  is  seven  years.-^  In  Michi- 
gan it  is  twenty-five  years,'*^  and  in  California  five.'^ 

The  earliest  case  in  Massachusetts  in  which  the  doctrine 
of  twenty  years'  enjoyment  was  allowed  as  evidence  of  a 
grant  of  an  easement  was  Hill  v.  Crosby.* 

The  doctrine  upon  the  subject  maintained  by  the  Supreme 
Court  of  the  United  States  is  thus  stated :  "  In  general,  it 
is  the  policy  of  courts  of  law  to  limit  the  presumption  of 
grants  to  periods  analogous  to  those  of  limitations,  in  cases 
where  the  statute  does  not  apply."  ^ 

By  the  law  of  France,  possession  and  enjoyment  of  con- 
tinuous and  apparent  easements  for  the  period  of  thirty 
years  create  a  prescriptive  title  to  the  same.*^ 

25.  But  no  time  of  enjoyment  less  than  the  term  of  pre- 
scription can  give  one  a  right  of  easement  in  the  land  of 
another,  or  raise  any  presumption  in  favor  of  such  a  right. 
In  one  case,  cited  below,  the  enjoyment  and  acquiescence 
had  been  for  nineteen  years  ;  in  another,  between  fifteen 
and  twenty  years." 

There  must,  moreover,  be  what  answers  in  law  to 
an  *actual  enjoyment,  in  order  to  create  a  prescrip-  [*86] 
tion.  It  is  laid  down  as  an  invariable  maxim  by  wri- 
ters upon  the  civil  law,  Tantum  prcBScripium,  quantum  pos- 
sessum.  Prescription  acquires  for  the  possessor  precisely 
what  he  has  possessed,  but  nothing  beyond  that.  Prescrip- 
tiones  tantum  hahent  de  potentia  quantum  habcnt  de  actu. 

1  Okeson  v.  Patterson,  29  Penn.  St.  22. 

2  Aiigell,  Limit.,  4tli  ed.,  Appendix  of  Statutes. 
8  Ibid. 

*  Hill  V.  Crosby,  2  Pick.  467. 

6  Ricard  r.  Williams,  7  Wheat.  110. 

6  2  Fournel,  Traite'  des  Servitudes,  338,  \  221 ;  Code  Nap.,  Art.  690. 

7  Gayetty  v.  Bethunc,  14  Mass.  49,  .55;  Campbell  v.  Smith,  3  Halst.  140; 
Prescott  V.  Phillips,  cited  6  East,  213;  King  v.  Tiffany,  9  Conn.  162;  Oilman 
V.  Tiltoir,  5  N.  H.  231  ;  Dyer  v.  Depui,  5  Whart.  586 ;  Haight  v.  Price,  21  N.  Y. 
241  ;  Thurston  v.  Hancock,  12  Mass.  220  ;  Green  v.  Chel»ea,  24  Pick.  71  ;  Law- 
ton  V.  Rivers,  2  M'Cord,445;  Jeter  v.  Mann,  2  Hill,  So.  C.  641  ;  Stuyvesant  i;. 
Woodruff,  1  N.  J.  133 ;  Griffin  i;.  Foster,  8  Jones,  L.  339. 


124  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

The  possession,  therefore,  of  a  part  only  of  a  divisible  thing 
is  not  the  possession  of  the  whole. ^ 

26.  In  the  next  place,  the  use  and  enjoyment  of  what  is 
claimed  must  have  been  adverse,  under  a  claim  of  right , 
exclusive,  continuous,  uninterrupted,  and  with  the  knowledge 
and  acquiescence  of  the  owner  of  the  estate  in,  over,  or  out 
of  which  the  easement  prescribed  for  is  claimed,  and  while 
such  owner  was  able,  in  law,  to  assert  and  enforce  his  rights, 
and  to  resist  such  adverse  claim,  if  not  well  founded.  And 
it  must,  moreover,  be  of  something  which  one  party  could 
have  granted  to  the  other.  Out  of  the  numerous  cases  that 
might  be  cited  to  sustain  the  above  proposition,  in  part  or  as 
a  whole,  a  few  have  been  selected  as  a  matter  of  convenient 
reference.2 

27.  In  analyzing  the  essential  requisites  to  the  gaining  of 
a  right  by  prescription,  by  adverse  is  meant  that  it  was  not  a 
matter  of  permission  asked  by  the  one  party  and  granted  by 
the  other,  for  an  adverse  right  of  easement  cannot  grow  out 
of  a  mere  permissive  enjoyment.^  The  real  point  of  distinc- 
tion is  between  a  tolerated  or  permissive  user,  and  one  which 
is  adverse  or  as  of  right.  The  former  will  not  mature  into  a 
title  by  prescription.^     Thus  a  tenant  cannot  prescribe  for 

1  3  Toullier,  Droit  Civil  Franoais,  485  ;  post,  sect.  39. 

2  Colvin  V.  Burnet,  17  Wend.  564  ;  Luce  v.  Carlej,  24  Wend.  451 ;  Hargent 
V.  Ballard,  9  Pick.  251,  255;  Gayetty  v.  Bethune,  14  Mass.  49,  55;  Parker  v. 
Foote,  19  Wend.  309,  313 ;  Hart  v.  Vose,  Ibid.  365  ;  Stokes  v.  Appomatox  Co., 
3  Leigh,  318;  Golding  v.  Williams,  Dudley,  92;  Arnold  v.  Stevens,  24  Pick. 
106;  Yard  v.  Ford,  2  Wms.  Saund.  175  d,  note;  3  Dane,  Abr.  251,  252;  Wat- 
kins  V.  Peck,  13  N.  H.  360;  Thomas  v.  Marshfield,  13  Pick.  240;  Tickle  v. 
Bro%vn,  4  Adolph.  &  E.  369  ;  Bradbury  v.  Grinsell,  cited  2  Wms.  Saund.  175  d; 
Olney  v.  Gardner,  4  Mces.  &  W.  496;  Miller  v.  Garlock,  8  Barb.  153;  Mebane 
V.  Patrick,  1  Jones,  No.  C.  23  ;  Ingrnbam  v.  Hough,  Ibid.  39  ;  Esling  v.  Williams, 
10  Penn.  St.  126  ;  Gentleman  v.  Soule,  32  111.  279  ;  Tracy  v.  Atherton,  36  Verm. 
514  ;  Harper  v.  Parish,  &c.,  7  Allen,  478;  Edson  v.  Munsell,  10  Allen,  560,  568 ; 
Evans  v.  Dana,  7  R.  I.  311. 

8  Bachelder  i\  Wakefield,  8  Cush.  243;  Howard  v.  O'Neill,  2  Allen,  210; 
Mcdford  v.  Pratt,  4  Pick.  222 ;  Kilburn  v.  Adams,  7  Mete.  33 ;  Gayetty  v.  Be- 
thune, 14  Mass.  50;  Tickle  v.  Brown,  4  Adolph.  &  E.  369  ;  Hall  v.  M'Leod,  2 
Mete.  Ky.  98 ;  Ingraham  v.  Hough,  1  Jones,  No.  C.  39. 

*  Polly  V.  M'Call,  37  Ala.  20 ;  8.  c,  Select  Cases,  Ala.  255  ;  Pierce  v.  Cloud, 
42Pcnn.  113. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY  TRESCRIPTION.  125 

an  easement  against  his  landlord/  and  so  long  as  a  way  is 
used  under  a  license,  it  cannot  be  claimed  by  prescription. ^ 
Where  A,  by  permission  of  B,  dug  a  drain  from  B's  land 
through  A's  to  draw  off  water  standing  on  B's  land,  and  this 
was  used  for  more  than  twenty  years  in  that  state,  and  a 
third  party  purchased  B's  land  wliile  the  drain  was  in  exist- 
ence, it  was  held  that  the  owner  of  B's  land  gained  no  right 
of  easement  to  have  the  same  drained  thereby,  by  means  of 
such  usc.^ 

*It  is  an  important  circumstance,  in  determining   [*87] 
whether  the  user  of  the  right  claimed  is  adverse  or 
not,  that  it  is  contrary  to  the  interest  of  the  owner  of  the 
land.4 

If,  therefore,  it  appears  that  the  enjoyment  has  been  by 
permission  asked,  or  for  a  rent  paid,  or  other  equivalent  acts 
done  by  the  one  exercising  the  privilege,  showing  that  it  was 
not  done  adversely  or  under  a  claim  of  right,  it  effectually 
rebuts  the  presumption  of  a  grant.  Thus  an  offer,  within 
the  twenty  years,  by  the  claimant  of  the  easement,  to  pur- 
chase the  right  of  the  owner  of  the  land,  was  held  to  be  an 
act  of  this  character.^  And  the  language  of  the  court  of 
New  York  upon  the  point  is  very  significant  and  strong: 
"  It  is  well  known  that  a  single  lisp  of  acknowledgment  by 
a  defendant  that  he  claims  no  title,  fastens  a  character  upon 
his  possession  which  makes  it  unavailable  for  ages."  "^ 

But  asking  permission  to  use  an  easement  once  actually 
acquired,  does  not  affect  the  right.  It  would  only  bear  upon 
the  question  whether  the  prior  use  had  been  adverse  or  per- 
missive in  a  trial  of  that  issue.''' 

"  There-  must   be  an  adverse   possession  or   assertion  of 

1  Phillips  V.  Phillips,  48  Penn.  184. 

2  Crounse  v.  Wemple,  29  N.  Y.  542,  * 

3  Smith  V.  Miller,  II  Gray,  145. 

*  Arnold  v.  Stevens,  24  Pick.  106. 

5  Watkins  v.  Peck,  13  N.  H.  360. 

6  Colvin  V.  Burnet,  17  Wend.  564.     See  Betts  v,  Davenport,  13  Conn.  286. 

7  Perrin  v.  Garfield,  37  Verm.  310. 


126  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

right,  so  as  to  expose  the  party  to  an  action,  unless  he  had  a 
grant ;  for  it  is  the  fact  of  his  being  thus  exposed  to  an  action, 
and  the  neglect  of  the  opposite  party  to  bring  suit,  tliat  is 
seized  upon  as  the  ground  for  presuming  a  grant  in  favor  of 
long  possession  and  enjoyment,  upon  the  idea  that  this  ad- 
verse state  of  things  would  not  have  been  submitted  to  if 
there  had  not  been  a  grant."  ^ 

Thus  in  Doe  v.  Wilkinson,  which,  though  not  a  case  of 
easement,  illustrates  the  principle  above  stated,  the  defend- 
ant had  been  in  possession  of  a  parcel  of  land  which  he  en- 
closed over  thirty  years  previous  to  1822.  In  1808  the  plain- 
tiff purchased  it  of  the  true  owner,  and  in  1816  called  on 
the  defendant  to  pay  him  sixpence  as  rent,  and  the 
[*88]  *defendant  paid  it  three  times.  In  an  action  to  re- 
cover the  land  in  1822,  the  court  held  this  payment 
of  rent  conclusive  evidence  that  the  occupation  by  the  tenant 
was  a  permissive  one,  and  that  he  was  the  plaintiff's  tenant.^ 

So  the  yielding  by  the  owner  of  the  dominant  estate  to 
the  demand  of  the  owner  of  the  servient  one,  that  he 
should  forbear  to  exercise  the  right  claimed  during  the  pe- 
riod of  alleged  enjoyment  under  which  the  claim  is  made, 
would  rebut  the  idea  that  such  enjoyment  was  adverse  under 
a  claim  of  right.  Thus  where  the  owner  of  a  lower  mill  had 
been  accustomed,  during  a  state  of  low  water,  to  place  flash- 
boards  upon  his  dam,  and  continued  this  usage  for  more  than 
twenty  years,  but  during  these  years  had  complied  with  the 
requirements  of  the  owner  of  an  upper  mill  to  remove  them, 
at  times,  and  did  not  claim  a  right  to  maintain  them  to  the 
injury  of  the  upper  mill,  it  negatived  the  claim  of  a  prescrip- 
tive right  to  enjoy  the  use  of  such  flash-boards.-^ 

28.  But  though  a  right  of  way  cannot  be  gained  by  the 
parol  agreement  of  him  who  creates   it,  yet  where,  under 

1  Felton  V.  Simpson,  11  Ired.  84;  Mebane  v.  Patrick,  1  Jones,  No.  C.  23. 

2  Doe  V.  Wilivinson,  3  Barncw.  &  C.  413;  Lisle 's  Lessee  v.  Harding,  cited  in 
Bullcr,  N.  P.  104.     See  also  Church  v.  Burghardt,  8  Pick.  327. 

3  Sumner  v.  Tileston,  7  Pick.  198. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  127 

such  agreement,  the  owner  of  the  dominant  estate  used 
the  way  thus  created  for  twenty  years,  and  the  same  was 
acquiesced  in  by  the  owner  of  the  servient  estate,  it  was 
held  to  be  such  an  exercise  of  the  way,  under  a  ch^im 
of  right,  as  to  gain  thereby  a  prescriptive  right  to  the 
samc.i 

And  it  is  no  objection  to  gaining  an  easement  by  prescrip- 
tion, that  the  same  was  originally  granted  or  bargained  for 
by  parol.  That  the  use  began  by  permission  does  not  affect 
the  prescriptive  right,  if  it  has  been  used  and  exercised  for 
the  requisite  period,  under  a  claim  of  right  on  the  part 
of  the  owner  of  the  dominant  tenement.  Land  *itsclf  [*89] 
may  be  gained  in  that  way,  as  well  as  an  easement  in 
it.2 

In  Monmouth  Canal  Co.  v.  Harford,  Lord  Lyndhurst  says  : 
"  The  sim^jle  issue  is,  whether  there  has  been  a  continued 
enjoyment  of  the  way  for  twenty  years,  and  any  evidence 
negativing  this  is  admissible.  Every  time  that  the  occupiers 
asked  for  leave,  they  admitted  that  the  former  license  had 
expired,  and  that  the  continuance  of  the  enjoyment  was 
broken." 2 

And  in  Golding  v.  Williams  the  language  of  the  court  is : 
"  The  use  must  be  adverse,  and  such  as  would  show  that  no 
one  could  dispute  the  exercise  of  it."* 

29.  An  enjoyment  of  a  thing  may  be  continued  long 
enough  in  respect  to  time,  and  yet  under  such  circum- 
stances as  to  rebut  the  idea  of  its  being  an  adverse,  though 
not  permissive,  user.  Thus,  where  a  party  owned  land  ad- 
joining a  beach  which  he  depastured,  but,  there  being  no 
fence  between  his  land  and  the  beach,  his  cattle  were  accus- 
tomed to  pass  on  to  the  beach,  and  thence  over  the  adjoin- 
ing beaches,  which  were  unfenced,it  was  held  not  to  be  such 

1  Ashley  v.  Ashley,  4  Gray,  197. 

2  Arbuckle  v.  Ward,  29  Vt.  43,  52.     See  Sumner  v.  Stevens,  6  Mete.  337. 

8  Monmoutli  Canal  Co.  i'.  Harford,  1  Crompt.  M.  &  R.  631.  See  Church  r. 
Burghardt,  8  Pick.  327. 

*  Goldiug  V.  Williams,  Dudley,  92. 


128  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

an  adverse  enjoyment  of  a  right  to  run  upon  these  beaches 
as  to  gain  a  prescriptive  right  thereby,  since  it  was  in  no 
way  injurious  to  the  rights  of  the  owners  of  the  beaches,  nor 
likely  to  produce  resistance  or  opposition.^ 

So  no  one  will  acquire  a  title  by  prescription,  by  pasturing 
his  cattle  on  an  open  common,  training-field,  or  highway  ; 
for,  these  being  kept  open  for  public  use,  no  one  by  using 
them  can  raise  any  presumption  of  a  particular  grant  in  his 
favor  .2 

In  accordance  with  this  idea,  that  the  enjoyment  of 
[*90]  a  *thing  by  one  cannot  be  held  to  be  adverse  to  an- 
other who  is  in  no  way  injured  thereby,  especially  if 
he  is  not  cognizant  of  such  enjoyment ;  where  one  raised 
water  upon  his  land  which  percolated  into  the  land  of  an 
adjoining  proprietor,  but  did  no  harm  to  the  same,  nor  was 
the  fact  known  to  the  land-owner  until  he  had  occasion  to 
build  upon  it,  when,  upon  beginning  to  excavate  the  same, 
he  found  that  the  water  beneath  the  surface  interfered  with 
his  occupying  his  land,  it  was  held  that,  though  this  raising 
of  the  water  had  been  long  continued,  no  prescriptive  right 
to  continue  it  had  thereby  been  acquired,  since  prescription 
does  not  begin  till  the  act  by  which  it  is  claimed  has  begun 
to  work  some  injury  to  the  right  of  the  other  party,  of  which 
he  might  be  cognizant.^ 

So  where  one,  having  diverted  the  waters  of  a  stream  by  a 
ditch  dug  within  his  own  land,  but  occasioned  no  damage 
thereby  to  his  neighbor's  land,  so  long  as  he  kept  the  ditch 
clear,  afterwards  suffered  it  to  become  filled  up  and  clog- 
ged, whereby  the  lands  of  his  neighbor  were  damaged,  it 
was  held  that  the  prescription  to  maintain  such  diversion 
must  date  from  the  time  it  began  to  cause  injury,  and  not 
from  the  time  of  digging  the  ditch.^     And  where  one  under- 

1  DonncU  v.  Clark,  19  Me.  174,  183;  Thomas  v.  Marshficld,  13  Pick.  240. 

2  Thomas  v.  Marshficld,  13  Pick.  240;  First  Parish  in  Gloucester  v.  Beach, 
2  Pick.  60,  note. 

8  Cooper  V.  Barber,  3  Taunt.  99  ;  ante,  pi.  4.     Sec  also  Cooper  v.  Smith,  9 
Serg.  &  R.  33. 
♦  Polly  V.  M'Call,  37  Ala.  30. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   TRESCRIPTION.  129 

took  to  prescribe  for  the  right  to  throw  cinders,  &c.,  into  a 
stream,  which  injured  a  mill  below,  it  was  held  that  it  must 
date  from  the  time  that  such  injury  began.^ 

And  the  cases  last  cited  are  so  nearly  identical  in  principle 
■with  the  two  cited  below,^  that  it  is  unnecessary  to  repeat 
the  facts  at  length. 

30.  It  is  not,  however,  necessary  to  show  that  the  act 
which  forms  the  basis  of  the  prescription  did  any  actual  dam- 
age to  the  party  against  whom  it  is  claimed,  provided  it  was 
an  invasion  of  his  riglit.-^ 

31.  And  if  there  has  been  the  use  of  an  easement  for 
twenty  years  unexplained,  it  will  be  presumed  to  be  under 
a  claim  of  right,  and  adverse,  and  be  sufficient  to  establish  a 
title  by  prescription,  and  to  authorize  the  presumption  of  a 
grant,  unless  contradicted  or  explained.* 

An  instance  of  the  application  of  this  doctrine  was  that  of 
White  V.  Chapin,  very  recently  decided,  wherein  Foster,  J. 
gave  an  elaborate  opinion.  One  ancient  ditch  connected 
with  another  still  more  ancient,  by  which  the  water  accu- 
mulating upon  a  considerable  tract  of  land  flowed  from  the 
first  into  the  second  ditch,  and  thence  into  a  natural  stream. 
The  two  estates  through  which  these  ditches  ran,  came  into 
the  same  owner's  possession.    After  a  while  he  sold  the  lower 

1  Murgatroyd'y.  Robinson,  7  Ellis  &  B.  391. 

2  Roundtree  v.  Brantley,  34  Ala.  544 ;  Crosby  v.  Bessey,  49  Me.  539.  See 
also  Flight  v.  Thomas,  10  Ad.  &  El.  590 ;  post,  p.  *100,  10  Law  M.  &  K.  182. 

3  Bolivar  Mg.  Co.  v.  Ncponset  Mg.  Co.,  16  Pick.  241,  247;  Bliss  v.  Rice,  17 
Pick.  23;  Hobson  v.  Todd,  4  T.  R.  71  ;  Atkins  v.  Bordman,  2  Mete.  457;  Par- 
ker i\  Foote,  19  Wend.  309,  314 ;  Hastings  v.  Livermore,  7  Gray,  194  ;  post,  chap. 
6,  sect.  2,  pi.  1. 

*  Miller  v.  Garlock,  8  Barb.  153;  Chalk  v.  M'Alily,  11  Rich.  153;  Williams 
V.  Nelson,  23  Pick.  141,  147;  Yard  v.  Ford,  2  Wms.  Saund.  172;  Blake  v.  Ev- 
erett, 1  Allen,  248;  Ricard  v.  Williams,  7  Wheat.  59,  109;  Hammond  v.  Zeh- 
ner,  21  N.  Y.  118;  Bolivar  Mg.  Co.  v.  Neponset  Mg.  Co.,  16  Pick  241  ;  Colvin 
V.  Burnet,  17  Wend.  564;  Olney  v.  Fenner,  2  R.  I.  211  ;  Pue  v.  Pue,  4  Md.  Ch. 
Dec.  3S6;  Esling  v.  Williams,  10  Pcnn.  St.  126;  Steffy  v.  Carpenter,  37  Penn. 
St.  41  ;  Worrall  r.  Rhoades,  2  Whart.  427  ;  Garrett  v.  Jackson,  20  Penn.  St.  331  ; 
Ingraham  v.  Hough,  1  Jones,  No.  C.  39  ;  Polly  v.  Bl'Call,  37  Ala.  30;  Perrin  v. 
Garfield,  37  Verm.  310 ;  Hammond  v.  Zehner,  23  Barb.  473. 
9 


130       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

parcel  to  the  defendant's  grantor ;  and  then  sold  the  upper 
to  the  plaintiff's  grantor.  The  estates  thus  remained  for 
more  tlian  twenty  years,  when  the  owner  of  the  lower  parcel 
stopped  the  ditch.  The  upper  owner  claimed  a  prescriptive 
right  to  maintain  the  same,  and  this  right  was  sustained  by 
the  court.^ 

It  may,  however,  be  remarked,  in  passing,  that  the  plain- 
tiff, it  would  seem,  might  have  asserted  the  same  right  under 
an  implied  grant,  when  his  grantor  severed  the  two  heritages 
through  which  these  drains  had  been  constructed,  and  were 
openly  in  use  when  he  conveyed  them  to  separate  and  dis- 
tinct owners,  agreeably  to  the  doctrine  of  Pyer  v.  Carter, 
hereinbefore  commented  on  at  length.^ 

Accordingly  the  court,  in  Garrett  v.  Jackson,  say: 
[*91]  "  Where  *one  uses  an  easement  whenever  he  sees  fit, 
without  asking  leave,  and  withoiit  objection,  it  is  ad- 
verse, and  an  uninterrupted  adverse  enjoyment  for  twenty- 
one  years  is  a  title  which  cannot  be  afterwards  disputed. 
....  The  owner  of  the.  land  has  the  burden  of  proving 
that  the  use  of  the  easement  was  under  some  license,  indul- 
gence, or  special  contract  inconsistent  with  a  claim  of  right 
by  the  other  party .^ 

But  to  bring  a  case  within  the  principle  above  stated,  it  is 
apprehended  that  it  must  clearly  be  such  a  use  as  would  be 
the  invasion  of  another's  property  in  a  manner  indicating  a 
claim  of  right  on  the  part  of  one  party,  and  a  yielding  to 
such  right  by  the  other.  Thus,  in  Miller  v.  Garlock,  the 
right  used  was  that  of  a  private  way,  and  in  Chalk  v.  M'Alily, 
it  was  that  of  setting  back  water  upon  another's  land  by  a 
permanent  dam.  But  where  one  had  exercised  the  right  to 
pass  over  an  open  piece  of  ground  around  a  public  academy, 
to  his  own  house,  whenever  he  pleased,  and  this  was  done  by 

1  White  V.  Chapin.     Allen  not  yet  reported. 

'•^  1  H.  &  Norm.  916  ;  ctf^te,  *44  ;  Copic's  case,  ante,  p.  *49  ;  Dunklec  v.  "Wilton 
R.  R.,  4  Fo.stcr,  489  ;  post,  p.  *530;  Dodd  v.  Burchell,  1  II.  &  Colt.  121 ;  Elliot  v. 
Rhett,  .5  Rich.  40.5. 

3  Garrett  v.  Jackson,  20  Penn.  St.  331  ;  Pierce  v.  Cloud,  42  Penn.  102,  113,  114. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION,  131 

the  proprietors  of  the  academy  and  other  people  generally, 
whenever  they  had  occasion,  it  was  held  to  be  a  permissive 
and  not  an  adverse  use  as  to  the  owners  of  the  land.  Nor  did 
it  make  any  difference,  that  the  owner  of  the  house  crossed 
the  land  in  one  uniform  track,  provided  the  same  bo  not 
wrought  by  him  into  away  for  his  distinct  and  separate  use.^ 

And  it  has  accordingly  been  held,  that,  under  the  statute 
of  2  &  3  William  lY.  c.  71,  §  5,  it  would  be  no  allegation  of 
a  prescriptive  right  of  way,  to  aver  in  a  plea,  simply,  that 
the  same  had  been  enjoyed  for  twenty  years.  In  order  to 
avail  as  such,  it  must  be  alleged  to  have  been  done  "  as  of 
right."  2 

And  the  mere  enjoyment  of  what  is  in  the  nature  of  an 
easement  in  favor  of  one  parcel  in  or  over  another 
parcel  of  *land,  for  the  requisite  period  of  time,  will   [*92] 
not,  under  the  statute  of  2  <fe  3  William  IV.,  gain  a 
prescriptive  right,  if,  during  any  portion  of  that  time,  both 
tenements  have  been  in  tlie  occupation  of  the  same  person.^ 

Upon  the  same  principle,  where  one  owns  land  adjoining 
a  highway,  the  soil  of  which  belongs  to  another,  and  occupies 
it  by  laying  wood,  logs,  or  other  materials  upon  it,  in  front 
of  his  land,  he  would  not,  by  such  use,  acquire  an  easement 
against  the  owner  of  the  soil  of  the  highway.  It  would  be 
considered  permissive  on  the  part  of  the  public,  and  not  ad- 
verse to  the  owner  of  the  soil,  and  one  reason  would  be,  that 
he  had  not  the  right  of  possession  during  the  time."^ 

32.  It  is  upon  the  ground  above  stated,  that  the  use  is 
neither  an  injury  to  the  owner  of  the  land,  nor  evidence  of 
any  assertion  of  a  right  adverse  to  him,  that  the  courts  of 
South  Carolina  have  repeatedly  held  that  no  one  gains  an 
easement  of  way  or  of  hunting  on  another's  land,  which  is 
wild  and  unenclosed,  by  travelling  across  or  hunting  over  it, 

1  Kilburn  v.  Adams,  7  Mete.  33  ;  sec  ante,  pi.  31,  note. 

2  Holford  V.  Hankinson,  5  Q.  B.  584 ;  Oliiey  v.  Gardiner,  4  Mees.  &  W.  496. 
See  Mebane  r.  Patrick,  1  Jones,  No.  C.  23. 

3  Harbridge  v.  Warwick,  3  Exch.  552. 
*  Parker  v.  Framinghara,  8  Mete.  260. 


132  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Ch.  I. 

such  use  by  the  public  being  regarded  as  a  permissive  one, 
from  the  condition  of  the  country,  and  the  general  iinder- 
standing  of  the  people  who  enjoy  it,  unless  evidence  is  offered 
to  give  a  different  character  to  such  use.^ 

It  does  not  depend  upon  the  land  being  unenclosed,  but 
upon  the  intention  with  which  the  act  of  passing  over  it  is 
done,  as  indicated  by  the  nature  of  the  use.  If  one  were 
notoriously  to  use  a  way  across  the  unenclosed  or  forest  land 
of  another  from  a  highway  to  his  own  premises,  not  casually, 
as  in  hunting  or  simply  travelling  across  it,  but  for 
[*93]  purposes  *of  occupying  or  cultivating  his  own  land, 
under  some  notorious  assertion  of  right,  he  may  there- 
by acquire  an  easement  of  way  over  such  unenclosed  or  forest 
land.2 

The  rule,  as  stated  in  one  case,  is,  that  the  way,  in  order 
to  be  gained  by  such  use,  must  be  a  definite  one,  "  with  an 
a  quo  and  an  ad  querns  '^ 

33.  And  in  Maine,  the  courts,  in  applying  the  doctrine  of 
adverse  use  to  cases  where  mill-owners  have  exercised  the 
statute  right  to  flow  the  lands  of  others,  have  held  that, 
inasmuch  as  no  claim  of  damages  can  be  prosecuted  until 
some  injury  has  been  sustained  by  the  land-owner,  no  ease- 
ment of  right  to  flow  can  be  acquired  by  the  mill-owner  in 
such  cases  by  merely  continuing  the  act  of  flowing  for  twenty 
years.  It  must  be  such  as  to  cause  damage  to  the  land- 
owner, in  order  to  raise  a  presumption  of  grant  from  twenty 
years'  enjoyment ;  otherwise  the  law  will  presume  it  to  have 

1  Rowland  v.  Wolfe,  1  Bailey,  56 ;  Lawton  v.  Rivers,  2  M'Cord,  445  ;  Turn- 
bull  V.  Rivers,  3  M'Cord,  131 ;  M'Kee  v.  Garrett,  1  Bailey,  341  ;  Nash  v.  Peden, 

1  Specrs,  17  ;  Sims  v.  Davis,  Cheves,  1  ;  Hogg  v.  Gill,  1  M'Mull,  329  ;  Golding 
V.  Williams,  Dudley,  92 ;  Prince  v.  Wilbourn,  1  Rich.  58 ;  Watt  v.  Trapp,  2 
Rich.  136;  Gibson  v.  Durham,  3  Rich.  85;  Hale  v.  M'Leod,  2  Mete.  Ky.  98. 
See  also  Mcbanc  v.  Patrick,  1  Jones,  No.  C.  23. 

2  Worrall  v.  Rhoades,  2  Whart.  427  ;  Smith  v.  Kinard,  2  Hill,  So.  C.  642 ; 
Jeter  v.  Mann,  Ibid.  641 ;  Reimer  v.  Stuber,  20  Penn.  St.  458  ;  Watt  v.  Trapp, 

2  Rich.  136;  Nash  v.  Peden,  1  Specrs,  17  ;  Gibson  v.  Durham,  3  Rich,  85;  Hall 
j;.  M'Leod,  2  Mete.  Ky.  98. 

3  Golding  V.  Williams,  Dudley,  92. 


Sect.  4.]  ACQUIRING  EASEMENTS   BY  PRESCRIPTION.  133 

been  done  by  authority  of  the  statute,  and  subject  to  the 
payment  of  damages  in  the  mode  prescribed  by  statute.^ 

34.  But  such  is  not  held  to  be  the  law  in  Massachusetts. 
The  enjoyment  of  the  right  to  flow  another's  land  for  twenty 
years,  if  unexplained,  will  raise  a  presumption  of  grant, 
although  no  actual  damage  could  be  shown  to  be  occasioned 
thereby.  "  It  may  be  deemed  adverse,  if  in  any  degree  it 
tend  to  impose  any  servitude  or  burden  on  the  estate  of 
another."  ^ 

35.  And  in  New  York  it  was  held,  that  a  continued  user 
of  a  right  upon  another's   land,   injuriously  affecting  the 
same,  for  twenty  years,  such  as  flowing  it,  creates  a 
*presumption  of  a  grant,  and  if  the  owner  of  the  land  [*94] 
would  rebut  it,  he  must^how  it  to  have  been  done  by 
license  or  permission.^ 

So  where  one  abutted  his  mill-dam  upon  another's  land, 
without  claiming  any  right  to  the  soil,  and  continued  to  use 
and  enjoy  the  same  for  twenty  years,  it  was  held  that  he 
thereby  had  acquired  an  easement  to  maintain  his  dam  and 
flowing.*  And  where  a  mill-owner  used  and  maintained  a 
dam  and  pond  of  water  to  supply  his  mill,  situate  about  a 
mile  below  this  dam,  and  continued  so  to  use  it  the  requi- 
site length  of  time  to  gain  a  prescription,  it  was  held  that  he 
thereby  acquired  a  right  to  the  use  of  such  dam  and  pond  of 
water  for  his  mill,  and  that  this  passed  as  ||)purtenant  to  the 
mill  upon  a  sale  thereof,  although  the  dam  and  pond  were 
upon  another  person's  land.^ 

86.  One  may  acquire  a  negative  easement  in  another's 
land  by  adverse  judgment  for  the  term  of  twenty  years,  as 

1  Tinkham  v.  Arnold,  3  Me.  120  ;  Nelson  v.  Butterfiekl,  21  Me.  220  ;  Under- 
wood, V.  No.  Wayne  Seythe  Co.,  41  Me.  291  ;  Gleason  v.  Tuttle,  46  Me.  288; 
Seidensparger  v.  Spear,  17  Me.  123 ;  j^ost,  chap.  3,  sect.  5,  pi.  9. 

2  Williams  v.  Nelson,  23  Pick.  141. 

3  Hammond  v.  Zehner,  21  N.  Y.  118. 
*  Trask  v.  Ford,  39  Me.  437. 

s  Perrin  v.  Garfield,  37  Verm.  304.  See  Brace  v.  Yale,  10  Allen,  441  ;  post, 
p.  *272. 


184       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Cn.  I. 

well  as  an  affirmative  one.  Thus  in  case  of  a  mill  upon  a 
stream,  from  which  an  ancient  ditch  had  formerly  caused  the 
waters  of  such  stream  to  flow  in  a  direction  so  as  not  to 
reach  the  mill,  the  owner  stopped  the  ditch,  and  thereby 
the  water  of  the  stream  flowed  uninterruptedly  to  his  mill. 
This  he  enjoyed  for  twenty  years,  when,  the  owner  of  the 
ditch  having  attempted  to  open  it,  it  was  held  that  the  mill- 
owner  had  thereby  acquired  the  right  to  have  the  same  kept 
closed.i 

37.  It  is  no  objection  to  the  acquiring  of  an  easement  by 
adverse  enjoyment,  that,  to  a  certain  and  defined  extent,  it 
is  an  excess  of  user  beyond  what  has  been  granted  by  deed. 
Thus,  where  one  to  whom  a  foot-way  had  been  granted  used 
it  as  a  carriage-way  also  for  the  space  of  twenty  years,  it  was 
held  that  he  had  gained  a  carriage-way  by  prescription. 

But  where  an  easement  has  been  created  by  grant  or 
reservation,  no  use  of  it  will  be  held  to  be  adverse  which  can 
be  construed  to  be  consistent  with  the  terms  of  the  grant  or 
reservation,  and,  consequently,  the  extent  of  the  easement  will 
be  limited  by  the  terms  of  such  grant  or  reservation .^ 
[*95]  *38.  In  other  words,  the  law  never  presumes  a 
grant  nor  raises  a  prescription  from  a  use,  where 
there  has  been  an  express  grant  to  which  the  use  sub- 
stantially conforms.^ 

39.  An  easem#it,  moreover,  cannot  be  prescribed  for, 
unless  the  party  claiming  it  has  actually  used  and  enjoyed 
it,  as  well  as  claimed  it  as  of  right.  The  prescription  grows 
out  of  the  user  and  intent,  and  not  the  claim  or  intent  with- 
out the  user,  however  strongly  expressed.  Thus  it  was  held 
not  to  be  competent  for  one  to  establish  a  right  of  way  over 
another's  land,  by  showing  that,  while  standing  on  his  own 
land,  he  declared  to  a  third  person  that  he  had  a  right  of 

1  Drewett  v.  Shcard,  7  Carr.  &  P.  465. 

^  Atkins  V.  Bordman,  20  Pick.  291  •,  s.  c,  2  Mete.  457  ;  Gayetty  v.  Bethune, 
14  Mass.  49 ;  Wheatlcy  v.  Chrisman,  24  Penn.  St.  298. 
8  Atkins  V.  Bordman,  2  Mete.  457,  4G5. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  135 

way  over  the  laud  in  question,  but  did  not  point  it  out  or  do 
anything  upon  the  last-mentioned  close. ^ 

40.  As  an  instance  of  what  enjoyment  would  be  held  to  be 
adverse,  and  under  a  claim  of  right,  although  partaking 
somewhat  of  the  character  of  permissive  use,  B.  and  H.  owned 
adjacent  lots  running  back  from  the  street,  on  which  they 
occupied  houses  which  were  separated  by  an  open  passage- 
way, along  and  near  the  middle  of  which  the  dividing  line 
of  their  land  ran.  This  passage-way  they  both  had  made 
use  of  for  over  twenty  years,  and  at  one  time  there  was  a 
gate  at  the  street  which  opened  into  the  same.  A  street 
having  been  opened  from  the  first-mentioned  street  along 
the  other  side  of  H.'s  house,  whereby  he  could  reach  his  back 
land,  and  having  no  occasion  to  use  this  passage-way  any 
longer,  he  built  upon  it,  and  insisted  that  B.  had  no  other 
right  to  use  it  than  by  way  of  indulgence  and  permission. 
But  the  court  held  that,  so  far  as  either  had  used  the  other's 
land  for  a  way,  it  was  to  be  presumed  to  be  adverse,  and, 
having  been  continued  more  than  twenty  years,  an  easement 
was  thereby  gained.  The  court  refer  to  the  circumstances 
and  situation  of  the  premises  in  respect  to  the  way, 

as  tending  to  confirm  this  view  ;  and  held  that,  *after  [*96] 
such  use,  the  burden  of  proof  would  be  upon  the 
party  resisting  the  claim,  to  show  that  the  use  had  been 
permissive.'-^ 

41.  But  it  is  otherwise  where  the  subject-matter  of  enjoy- 
ment is  owned  in  common,  and  is  in  its  nature  indivisible, 
like  a  water-power,  though  its  parts  are  divided  by  the  line 
of  ownership  of  the  land.  Thus,  where  the  owners  of  land 
upon  the  opposite  sides  of  a  stream  have  a  water-power 
between  them,  through  which  the  dividing  line  of  their  lands 
runs,  and  one  of  them  occupies  the  whole  power,  he  does 
not  thereby  gain  any  prescriptive  right  to  such  exclusive  use, 
so  long  as  the  opposite  proprietor  neither  iises  nor  seeks  to 

1  Ware  v.  Brookhouse,  7  Gray,  454 ;  a}ite,  sect.  25. 

2  Barues  v.  Hayncs,  13  Gray,  188. 


136      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

use,  nor  makes  any  provision  nor  lias  any  occasion  for  the 
use  of  any  part  of  the  stream  to  which  he  is  entitled.  Such 
use  by  the  one  owner  is  not  deemed  to  be  adverse  to  the  right 
of  the  other  owner,  for  in  using  his  own  part  of  the  privilege 
he  is  obliged  to  use  the  whole  as  one  entire  thing.^ 

42.  The  case  of  Wheatley  v.  Chrisman  presents  an  instance 
where  a  right  was  gained  by  a  constructive  adverse  enjoy- 
ment of  what  had  been  granted  to  one  by  the  party  against 
whom  he  claimed  it.  The  defendant  had  granted  to  the 
plaintiff  a  right  to  carry  water  across  the  defendant's  land 
for  the  purpose  of  irrigating  the  land  of  the  plaintiff.  This 
he  had  enjoyed  for  more  than  twenty  years,  and  daring  that 
time  he  had  enjoyed  the  privilege  of  watering  his  cattle  at 
the  ditch  within  his  own  land.  The  defendant,  after  this, 
having  fouled  the  water,  it  was  held  that  the  plaintiff  might 
have  an  action  for  the  injury  thus  done  to  him  by  depriving 
him  of  the  benefit  of  the  water  in  a  state  suitable  for  his 
cattle  to  drink,  although  the  watering  of  them  upon  his  own 
land  had  not  been  done  adversely  to  the  defendant.^  An- 
other case  of  constructive,  adverse  possession  arose  out  of 
the  situation  of  a  party-wall  standing  upon  an  arch,  one  leg 
of  which  rested  on  A.'s  and  the  other  on  B.'s  land,  and  it 
was  held,  after  twenty  years,  that  A.  had  a  right  to  have  the 
wall  thus  supported  on  B.'s  land.^ 

43.  Another  requisite  of  a  prescription  is,  that  the  en- 
joyment of  the  right  claimed  thereby  should  be  ex- 

[*97]  elusive,  *which  the  court,  in  Davis  v.  Brigham,  say 
must  mean,  "  that  the  enjoyment  of  the  easement,  as 
claimed,  whether  it  be  a  limited  or  more  general  enjoyment, 
should  exclude  others  from  a  participation  of  it."^ 

So  it  said  that  the  use  of  a  way,  if  continued  uninterrupt- 
edly, under  a  claim  of  right,  and  exercised  in  favor  of  a 

1  Pratt  r.  Lamson,  2  Allen,  275 ;  Stillman  i'.  White  Rock  Co.,  3  W.  &  Min. 
341,  343. 

2  Wheatley  v.  Chrisman,  24  Tcnn.  St.  304. 

3  Dowling  V.  Ilennings,  20  Md.  184. 
*  Davis  V.  Brigham,  29  Me.  391,  403. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  137 

proprietor,  sui  juris,  may  ripen  into  a  right  by  an  enjoyment 
for  the  requisite  length  of  timc.^ 

44.  It  would  seem  that  it  is  not  necessary  that  the  one 
who  claims  the  easement  should  be  the  only  one.  who  can  or 
may  enjoy  that  or  a  similar  right  over  the  same  land,  but 
that  his  right  should  not  depend  for  its  enjoyment  upon  a 
similar  right  in  others,  and  that  he  may  exercise  it  under 
some  claim  existing  in  his  favor,  independent  of  all  others. 
This  is  illustrated  by  the  case  of  Kilburn  v.  Adams,  where 
Shaw,  C.  J.  says  :  "  The  rule,  we  think,  is,  that  where  a 
tract  of  land  attached  to  a  public  building,  such  as  a  meet- 
ing-house, town-house,  school-house,  and  the  like,  and  occu- 
pied with  such  house,  is  designedly  left  open  and  unencum- 
bered for  convenience  and  ornament,  the  passage  of  persons 
over  it,  in  common  with  those  for  whose  use  it  is  appropri- 
ated, is  in  general  to  be  regarded  as  permissive,  or  under  an 
implied  license,  and  not  adverse.  And  though  an  adjacent 
proprietor  may  make  such  use  of  the  open  land  more  fre- 
quently than  another,  yet  the  same  rule  will  apply,  unless 
there  be  some  decisive  act  indicating  a  separate  and  exclusive 
use,  under  the  claim  of  right.  A  regularly  formed  and 
wrought  way  across  the  ground,  paved,  macadamized,  or 
gravelled,  and  fitted  for  use  as  a  way  from  his  own  estate  to 
the  highway,  indicating  a  line  distinct  from  any  use  to  be 
made  of  it  by  the  proprietors,  would,  in  our  view,  be  evi- 
dence of  such  exclusive  use  and  claim  of  right.  So  would 
any  plain,  unequivocal  act,  indicating  a  peculiar  and 
*excluslve  claim,  open  and  ostensible,  and  distinguish-  [*98] 
able  from  that  of  others."  ^ 

In  accordance  with  the  views  above  expressed,  the  court,  in 
Nash  V.  Peden  say  :  "  But  I  must  not  be  understood  as  mean- 
ing that,  where  a  clear  right  of  private  way  is  established,  it 
is  to  be  defeated  because  other  persons  than  the  plaintiff  have 

1  Pierce  i'.  Selleck,  18  Conn.  321. 

2  Kilburn  v.  Adams,  7  Mete.  33.     See  Smith  v.  Higbee,  12  Vt.  113  ;  Curtis  v. 
Angier,  4  Gray,  547. 


138  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cu.  I. 

used  the  road,  such  use  being  in  no  wise  inconsistent  with 

the  right Nor  do  I  suppose  the  proposition  can  be 

maintained,  that  a  private  right  of  way  must  be  exclusive. 
I  can  see  no  reason  why  two  or  even  more  may  not  acquire 
a  right  in  the  same  way,  and  by  the  same  adverse  use  by 
which  one  may  acquire  it."  ^ 

It  is  accordingly  said,  that  "  no  one  can  prescribe  for  a 
privilege  which  is  common  to  every  one."^ 

And  upon  this  principle  it  is  assumed,  in  Hamilton  v. 
White,  that  one  by  passing  over  a  public  highway  for  twenty 
years  does  not  thereby  acquire  a  private  right  of  way  over 
the  land  occupied  by  the  highway.^ 

45.  So  where  the  plaintiff  claimed  a  right  to  divert  the 
waters  of  one  stream  into  another  by  an  artificial  channel  cut 
through  intermediate  meadows,  upon  the  ground  that  he  had 
enjoyed  it  for  the  requisite  period  of  time,  it  was  held  to  be 
no  answer  to  this  claim,  that  the  owners  of  the  intermediate 
meadow  had  a  right,  at  certain  seasons  of  the  year,  to  divert 
the  waters  running  in  such  ditch  into  the  original  stream, 
the  question  of  such  right  to  divert  the  water  from  one  stream 
to  the  other  being  between  other  parties  than  the  owners  of 
the  meadows.* 

46.  And  different  prescriptions  may  exist  in  favor 
[*99]  of  *difrerent  persons  in  respect  to  the  same  land. 
That  is,  one  may  have  a  prescriptive  right  of  use  for 
one  purpose,  and  another  may  have  a  like  right,  but  for  an- 
other purpose.  Thus  one  may  have  a  right  to  flow  A.  B.'s 
land  for  the  purpose  of  floating  logs,  while  another  may 
acquire  it  to  flow  the  same  land  for  the  purpose  of  working 
mills.^ 

And  this  seems  to  be  in  accordance  with  the  doctrine  of 

1  Nash  V.  Pedcn,  1  Speers,  22. 

2  Tliomas  v.  Marslifield,  13  rick.  240  ;  First  Parish  in  Gloucester  v.  Beach,  2 
Tick.  60,  note. 

8  Hamilton  v.  White,  1  Seld.  9. 

♦  Bolivar  M<;.  Co.  v.  Neponset  Mg,  Co.,  16  Pick.  241. 

^  Davis  V.  Brigham,  29  Mc.  391. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  139 

Kent  V.  Waitc,  tliat  different  parties  may  have  riglits  of  way 
over  the  same  land,  one  claiming  it  as  apj)urtcnant  to  his 
estate,  and  others  by  custom  by  reason  of  living  in  a  certain 
locality  .1 

Nor  would  it  make  any  difference  in  acquiring  the  right, 
as  in  the  cases  of  Bolivar  Manufacturing  Co.  v.  Neponset 
Manufacturing  Co.,  and  Davis  v.  Brigham,  that,  as  between 
the  two  who  exercised  the  right  which  laid  the  foundation 
for  the  prescription,  one  had  such  a  paramount  right  that 
the  exercise  of  it  operated  as  a  suspension  of  the  exercise 
of  the  right  of  the  other.^ 

So  where,  a  town  having  made^  a  road  across  a  navigable 
stream,  a  mill-owner  erected  his  mill  and  applied  the  road 
as  a  dam  for  the  same,  whereby  land  of  a  third  party  was 
flowed,  and  this  had  been  continued  for  more  than  twenty 
years,  it  was  held  that  he  had  thereby  acquired  a  prescrip- 
tive right  to  flow  the  land.  Although  he  may  have  been 
liable  to  indictment,  by  so  doing,  in  a  public  prosecution  for 
a  nuisance  to  the  highway .^ 

47.  The  case  of  Curtis  v.  Angier  illustrates  the  doctrine 
that  one  may  gain  an  easement  by  adverse,  exclusive  enjoy- 
ment, though  others  are,  at  the  same  time,  using  it  for  other 
purposes  than  those  intended  by  him.  In  that  case  the  pro- 
prietors of  a  canal  changed  the  public  travel  from  an 
*existing  highway  on  to  the  tow-path  of  their  canal.  [*100] 
The  owner  of  a  farm,  through  which  the  canal  passed, 
had  used  this  tow-path  for  access  to  and  the  accommodation 
of  his  farm  for  over  twenty  years,  when  the  canal  and  tow- 
path  were  discontinued.  It  was  held  that,  if  the  way  had 
not,  by  such  user,  become  a  public  highway  by  dedication,  it 
had  become  a  private  one  by  adverse  use  and  enjoyment  by 
the  owner  of  the  farm,  which  he  had  a  right  to  assert  over 
and  along  the  course  of  the  tow-path.* 

1  Kent  V.  Waite,  10  Pick.  138. 

2  Davis  V.  Brigham,  29  Me.  391 ;  Bolivar  Mg.  Co.  v.  Neponset  Mg.  Co.,  16 
Pick.  241. 

8  Borden  v.  Vincent,  24  Pick.  301.  *  Curtis  v.  Angier,  4  Gray,  547. 


140  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

48.  Another  requisite  in  a  valid  prescription  is,  tliat  the 
use  and  enjoyment  by  virtue  of  which  it  is  claimed  should 
have  been  continuous  for  the  requisite  period  of  time.^  This 
involves  two  inquiries :  —  first,  What  may  be  regarded  as 
continuous  acts  of  enjoyment  ?  and,  second,  how  far  the  acts 
of  one  person  may  be  united  with  those  of  another  to  consti- 
tute a  continuity  for  the  requisite  period  of  enjoyment. 

49.  It  may  be  stated,  generally,  that  the  time  from  which 
the  period  is  to  be  reckoned  in  computing  the  duration  of  a 
continuous  enjoyment,  is  when  the  injury  or  invasion  of  right 
begins,  and  not  the  time  when  the  party  causing  it  began 
that  which  finally  creates  the  injury.  Thus,  where  one 
claimed  a  prescriptive  right  to  flow  another's  land  by  a  mill- 
dam,  it  was  held  that  the  period  of  prescription  began  when 
the  dam  was  so  far  completed  as  permanently  to  raise  the 
water  and  set  it  back  upon  the  land  flowed,  and  did  not 
include  the  time  during  which  it  was  in  the  progress  of  con- 
struction.2 

50.  What  shall  constitute  a  requisite  continuity  of  enjoy- 
ment to  gain  thereby  a  prescriptive  right  to  an  easement 
depends,  of  course,  upon  the  character  and  nature  of  the 

right  claimed.  To  exercise  a  right  of  way,  for  in- 
[*101]    stance,  *consists  in  passing  over  the  land  of  another 

more  or  less  frequently,  and  at  greater  or  less  inter- 
vals of  time,  according  to  the  nature  of  the  use  to  which  its 
enjoyment  may  be  applied ;  whereas  a  right  to  use  a  drain 
or  a  watercourse  through  another's  land,  or  to  flow  the  same 
for  the  purposes  of  operating  a  mill,  or  for  other  hydraulic 
uses,  implies  a  constant  and  continued  enjoyment  of  the 
right. 

The  terms  of  the  definition  are  conlimious  and  uninter- 

1  Pollard  V.  Barnes,  2  Cush.  191  ;  Monmouth  Canal  Co.  v.  Harford,  1  Crompt. 
M.  &  R.  614;  Co.  Litt.  113  6. 

2  Branch  v.  Doanc,  17  Conn.  402  ;  s.  c,  18  Conn.  233  ;  Hurlbut  v.  Leonard, 
Brayt.  201  ;  ante,  p.  *90.  Crosby  v.  Bessey,  49  Maine,  543 ;  Polly  v.  M'Call, 
37  Ala.  20.  See  2  Wood's  Civ.  L.  127,  128  ;  post,  c.  6,  §  2,  10,  Law  Mag.  &  R. 
182. 


Sect.  4.]  ACQUIRING  EASEMENTS   BY   PRESCRIPTION.  141 

rupted,  which  implies  that  the  enjoyment  shall  neither  have 
been  interrupted  by  the  act  of  the  owner  of  the  land  in,  over, 
or  across  which  the  right  is  exercised,  nor  by  a  voluntary 
abandonment  of  the  same  by  the  other  party.  As  it  is  ordi- 
narily impossible  to  show  an  actual  enjoyment  of  what  is 
claimed  as  an  easement,  every  day,  for  twenty  years,  or  in 
fact  to  maintain  such  an  uninterrupted  enjoyment,  each 
case,  it  would  seem,  may  present  a  matter  for  the  jury,  to 
inquire  whether  the  suspension  of  the  enjoyment,  if  any,  was 
voluntary,  or  by  some  act  of  interruption  on  the  part  of  the 
land-owner,  or  was  the  result  of  accident  or  causes  which  the 
party  claiming  the  right  could  not  control,  and  not  with  any 
intent  to  abandon  a  right  to  the  same.^ 

Coke,  quoting  Bracton,  says :  "  Continuam  dico  ita  quod 
non  sit  legitime  interrupta."  ^  Whatever  breaks  the  con- 
tinuity of  the  possession  and  enjoyment  of  an  easement, 
whether  by  a  cessation  to  enjoy  it,  or  by  any  act  of  the  own- 
er of  the  servient  tenement,  destroys  altogether  the 
*efrect  of  the  previous  user,  and  this  is  an  interrup-  [*102] 
tion  within  the  meaning  of  the  (Massachusetts}  stat- 
utes.^ 

In  the  case  of  Pollard  v.  Barnes,  the  claim  was  of  a  right 
to  pile  boards  upon  another's  land.  It  had  been  enjoyed 
from  1822  to  1846,  except  from  the  years  1829  to  1834,  dur- 
ing which  no  such  use  was  made  of  the  land.  And  it  was 
held  to  be  a  voluntary  interruption  which  destroyed  the  con- 
tinued enjoyment  of  the  right  for  twenty  years.* 

1  Pollard  V.  Barnes,  2  Cush.  191  ;  2  Washb.  Eeal  Prop.  46. 

"  Co.  Litt.  113  b.  The  entire  passage  from  Bracton  is  as  follows:  "Nunc 
autem  dicendum  qualiter  transferuntcr  sine  titulo,  et  traditione  per  usucaptionem, 
s.  per  longain,  continuam,  ct  pacificam  possessionem,  ex  diuturno  tempore  et 
sine  traditione  :  scd  quam  longa  esse  debeat,  non  definitur  a  jure,  sed  ex  justitia- 
riorum  discretione.  Continuam  dico,  ita  quod  non  sit  interrupta ;  interrupi  enim 
poterit  multis  modis,  sine  violentia  adhibita,  per  denuntiationem  et  impetratio- 
nem  diligentcm,  ^t  diligentem  prosequutionem,  et  per  talem  interruptionem 
nunquani  acquiret  possidens,  ex  tempore,  liberum  tencmentum.  Pacificam  dico 
quia  si  contentiosa  fuerit,  idem  erit  quod  prius,"  &c.  — Bract.,  fol.  51,  52. 

^  Pollard  V.  Barnes,  2  Cush.  191. 

*  Ibid.  191  -199. 


142      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Cn.  I. 

In  Watt  V.  Trapp,  the  party  claiming  a  right  of  way  passed 
over  the  land  in  1819,  and  then  again  in  1824  and  1825,  and 
continued  passing  to  1843.  But  it  was  held  not  to  be  a  con- 
tinuous use  except  from  1824.^ 

In  Dana  v.  Valentine,  the  easement  claimed  was  the  right 
to  carry  on  an  offensive  trade  in  the  claimant's  buildings, 
which  had  stood  more  than  twenty  years,  and  in  which  he 
had  carried  on  the  business  for  eighteen  years  uninterrupt- 
edly ;  and  it  was  held  that  the  mere  suspension  of  the  busi- 
ness for  two  years,  where  there  had  been  no  interference 
with  the  enjoyment  of  the  right,  was  not  an  interruption 
which  should  affect  the  right,  unless  done  with  an  intent  to 
abandon  the  business  and  not  resume  it.  The  intention,  in 
such  a  case,  becomes  a  material  inquiry .^ 

A  ready  illustration  would  present  itself  to  the  mind 
where,  from  analogy  to  the  above  cases,  there  would  seem 
to  be  no  want  of  continuity,  although  the  easement  was  but 
rarely  used.  Suppose  a  man  had  been  accustomed  to  go 
across  another's  land  to  a  meadow,  once  a  year,  for  the  pur- 
pose of  cutting  and  bringing  away  the  grass  growing  there- 
on, and  had  continued  this  for  twenty  years  or  more  under 
a  claim  of  right,  it  would  be  sufficient,  it  is  believed,  to  ac- 
quire thereby  an  easement  of  way  for  that  purpose. 
[*103]  *Nor  would  this  right  be  affected  by  the  long  inter- 
vals between  the  times  of  the  user.^ 

In  Wood  !■!.  Kelly,  the  easement  claimed  was  a  right  to 
flow  land,  but  the  flowing  had  been  suspended  during  the 
time  in  which  the  owner  of  the  dam  was  repairing  it.  It 
was  held  not  to  be  such  an  interruption  to  the  continuity  of 
the  user  and  enjoyment  as  to  affect  the  right.  So  it  would 
be  if  the  stream  were  at  times  too  low,  by  reason  of  a 
drought,  to  operate  his  mill.^ 

1  Watt  V.  Trapp,    2  Rich.  136. 

2  Dana  v.  Valentine,  5  Mete.  8,  13. 
8  Carr  v.  Foster,  3  Q.  B.  581. 

*  Wood  V.  Kelly,  30  Me.  47  ;  Gerengcr  v.  Summers,  2  Ircd.  229.  See  Win- 
nipiseogce  Co.  v.  Young,  40  N.  II.  420. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCEIPTION.  143 

Where  a  party  maintained  a  dam,  and  raised  the  water  of 
his  pond  to  the  hciglit  of  his  dam,  whenever  tlie  water  was 
high  enough  in  the  stream,  and  continued  tliis  more  than 
twenty  years  under  a  claim  of  right,  it  was  held  that  the 
height  of  his  dam  fixed  the  extent  of  his  easement  or  right 
of  flowing,  although,  at  times,  the  water  of  the  pond  was 
below  the  top  of  the  dam.^ 

In  Cuthbcrt  v.  Lawton,  the  court,  in  speaking  of  a  right  of 
way  wliich  was  claimed  by  user,  say  :  "  If  it  had  only  begun 
to  accrue,  the  obstruction  of  one  year  in  twenty  would  pre- 
vent its  legal  consummation ;  but  after  twenty  years  of  un- 
interrupted use,  it  could  only  be  defeated  by  an  adverse  and 
continued  obstruction,  for,"  &c.^ 

It  seems  to  be  an  unqi^estioned  proposition,  that  a  mere 
succession  of  acts  of  trespass  will  not  give  the  trespasser 
sucli  possession  as  to  gain  for  him  a  prescriptive  right.^ 

51.  And  the  language  of  the  court  in  Olney  v.  Gardiner, 
given  by  way  of  illustration,  presents  the  proposition  in  a 
clear  light :  "  For  instance,  if  the  occupier  had  used  the 
road  openly  for  a  year  or  two,  and  then  uniformly  asked 
permission  on  each  occasion,  or  only  used  it  secretly  and  by 
stealth  for  some  years,  and  then  resumed  the  enjoyment  of 
it,  no  one  would  pretend  that  a  grant  could  have  been  pre- 
sumed, because  the  intervals  of  enjoyment  united  might 
amount  to  twenty  years.  A  similar  reason  applies  to  inter- 
vals of  unity  of  possession,  during  which  there  is  no  one  who 
could  complain  of  the  user  of  the  road."  * 

Whether  there  has  been  an  interruption  to  the 
enjoyment  *of  what  is  claimed  as  an  easement,  is  a   [*104] 
question  for  the  jury.     To  bring  it  within  the  mean- 
ing of  the  statute  of  2  <fe  3  William  IV.  c.  71,  it  must  be  an 
interruption  caused  by  an  obstruction  of  some  otlier  person, 
and  not  a  mere  cesser  to  use  the  right.     Where  actual  en- 

1  Winnii)iseogce  Co.  v.  Young,  40  N.  H.  436  ;  post,  p.  *I05. 
2.  Cuthbert  v.  Lawton,  3  M'Cord,  195. 
3  Cooper  r.  Smith,  9  Serg.  &  R.  34. 
*  Olney  v.  Gardiner,  4  Mees.  &  W.  500. 


144  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

jojment  is  shown  before  and  after  the  period  of  intermission, 
it  may  be  inferred  from  that  evidence  that  the  right  contin- 
ued during  the  whole  time.  How  many  times  the  right  has 
been  exercised  is  not  the  material  question,  if  the  jury  are 
satisfied  that  the  claimant  of  the  right  exercised  it  as  often 
as  he  chose.  There  must  be  some  overt  act  indicating  that 
the  right  is  disputed.^ 

52.  Questions  often  arise,  especially  in  respect  to  ease- 
ments in  the  use  of  water,  in  consequence  of  changes  made 
in  the  mode  and  extent  of  user  and  enjoyment.  And  the 
rule  seems  to  be  this :  while  the  law  does  not  require  the 
use  to  be,  in  all  respects,  identical  and  the  same,  both  in 
manner  and  extent,  in  order  to  gain  an  easement ;  any  ma- 
terial change  in  these  respects^  while  the  right  is  being 
gained  by  prescription,  may  defeat  the  same.  If  it  shall 
have  been  actually  gained,  a  mere  failure  to  use  it  to  the 
extent  to  which  the  right  has  been  acquired  will  not  affect 
such  right. 

Thus,  where  one  had  enjoyed  the  use  of  a  drain  from  his 
land  over  ^that  of  another  for  more  than  twenty  years,  but 
during  the  twenty  years  it  had  been  materially  changed  in 
its  size,  direction,  and  termination,  it  was  held  that  no  right 
had  thereby  been  gained.  In  order  to  acquire  an  easement 
in  such  drain,  there  must  have  been  an  enjoyment  of  it 

twenty  years  after  such  change  had  been  made.^ 
[*105]  *So  where  one  flowed  the  land  of  another,  by  a  dam 
of  a  certain  height,  for  ten  years,  and  then  increased 
its  height,  and  thereby  flowed  additional  land  for  ten  years 
more,  it  was  held  that  he  had  thereby  only  acquired  an  ease- 
ment to  flow  the  parcel  which  was  flowed  by  the  original  dam.^ 

1  Carr  v.  Foster,  3  Q.  B.  5S1.  See  Lane  v.  Carpenter,  6  Exch.  825  ;  "Winship 
V.  Hudspeth,  10  Exch.  5,  The  following  cases  bear  upon  the  same  subject  of 
the  continuity  of  enjoyment  requisite  to  acquire  an  casement,  and  are  cited  for 
the  purpose  of  convenient  reference.  Esling  v.  Williams,  10  Penn.  St.  126; 
Ingraham  v.  Hough,  1  Jones,  No.  C.  39  ;  Battishill  v.  Reed,  18  C.  B.  696. 

■^  Cotton  V.  I'ocasset  Mg.  Co.,  13  Mete.  429 ;  Stein  v.  Burden,  2-t  Ala.  130. 

8  Baldwin  o.  Calkins,  10  Wend.  167;  Morris  v.  Commander,  3  Ired.  510; 
Wiiitticr  V.  Cocheco  Mg.  Co.,  9  N.  H.  454  ;  Gercuger  v.  Summers,  2  Ired.  229 ; 
Wright  V.  Moore,  38  Ala.  598. 


Sect.  4.]  ACQUIRING  EASEMENTS   BY  PRESCRIPTION.  145 

53.  But  where  the  locality  of  the  dam  by  which  the  flow- 
ing is  caused  is  not  material,  the  prescriptive  right  to  flow 
may  be  acquired,  if  continued  the  requisite  length  of  time, 
though  the  place  of  the  dam,  or  that  of  using  the  water,  be 
changed,  provided  it  be  used  for  the  same  purpose  during  tho 
requisite  time.^ 

Nor  is  it  necessary  that  the  water  should  have  been  used 
in  the  same  precise  manner  during  tli«  twenty  years,  or 
applied  to  propel  the  same  machinery.  All  that  the  law 
requires  is,  that  the  mode  or  manner  of  using  the  water 
should  not  have  been  materially  varied  to  the  prejudice  of 
others.^ 

54.  But  it  is  not  always  easy,  in  case  of  flowing  lands  by 
means  of  artificial  dams,  to  fix  a  precise  limit  to  what  has 
been  enjoyed  for  the  requisite  period  of  time  to  establish  a 
prescriptive  right.  The  state  of  the  water  in  most  streams 
is  constantly  varying,  and  the  condition  of  the  dam,  as  to  its 
capacity  to  pen  it  back,  is  often  affected  by  the  state  of  repair 
in  which  it  may  be.  As  a  general  rule,  the  height  of  the 
dam  fixes  and  limits  the  extent  of  the  right  to  flow.  By 
height  of  a  dam,  as  thus  used,  is  meant  its  height  when 
completed  and  finished,  with  its  rolling  dam,  waste-ways, 
&c.,  in  good  repair  and  condition,  without  regard  to  the 
height  of  other  parts  of  the  structure,  which  have  no  opera- 
tive effect  in  causing  the  water  to  flow  back.  When, 
*therefore,  one  has  acquired  a  prescriptive  right  to  [*106J 
maintain  a  dam  which,  in  its  usual  operation,  would 

raise  the  water  to  a  given  height,  and  has  used  it  at  his 
pleasure  at  that  height,  without  the  claim  of  any  other 
person  to  have  it  drawn  or  kept  down,  he  has  a  right  to 
retain  it  at  the  same  height,  although,  from  the  former  leaky 
condition  of  the  same,  the  construction  of  the  machinery,  or 

1  Davis  V.  Brigham,  29  Me.  391  ;    Stackpole  v.   Curtis,  32  Me.  383,  385  ; 
Whittier  v.  Coclieco  Mg.  Co.,  9  N.  H.  454,  458. 

2  Belknap  v.  Trimble,  3  Paige,  577  ;  Bullen  v.  Kunnels,  2  N.  H.  255;  Whit- 
tier V.  Cocheco  Mg.  Co.,  9  N.  H.  454. 

10 


146  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

lavish  use  of  the  water,  the  water  in  the  pond  is  not,  in  fact, 
constantly  or  usually  kept  at  that  height ;  and  he  would  not 
be  liable  for  rendering  his  dam  tight,  or  using  the  water  in  a 
different  mode,  though  he  thereby  constantly  flows  more  land 
than  he  liad  hitherto  usually  done.^ 

The  proposition  that  the  extent  of  the  right  to  flow  is 
determined  by  the  height  of  the  dam,  is  limited  by  the 
courts  of  New  Han^pshire,  so  that,  though  the  owner  of  the 
dam  may  maintain  it  at  the  height  to  which  it  has  been  kept 
by  twenty  years  user,  the  easement  of  flowing  by  it  is  fixed 
not  by  the  height  of  the  dam  but  by  the  limits  and  extent 
of  the  user  of  the  water  itself.  "  The  same  proof  of  user 
which  establishes  the  right,  is  equally  conclusive  in  estab- 
lishing the  limitations  of  that  right."  ^ 

In  New  York,  the  court  recognizes  the  doctrine  of  Cowell 
V.  Thayer  as  law,  and  applied  it  to  the  case  of  using  flash- 
boards  upon  a  dam  for  the  purpose  of  retaining  the  water  in 
seasons  when  it  was  low.  Having  acquired  a  right  to  do 
this,  the  owner  of  the  dam  was  at  liberty  to  raise  his  dam  to 
the  height  of  the  flash-boards  by  a  permanent  structure, 
provided  he  did  not  flow  it  any  higher,  or  for  a  longer  time 
in  the  year,  than  he  had  done  by  the  flash-boards.^  And  in 
another  case  the  mill-owner  was  held  liable  for  keeping  up 
the  water  a  longer  time  in  the  year  than  he  had  done  by  his 
flash-boards,  although  he  had  not  erected  his  dam  any 
higher  than  his  flash-boards  had  been  kept,  nor  any  higher 
,than  he  had  a  right  to  raise  it.  And  he  would  be  liable,  also, 
if  by  such  a  dam  he  flowed  more  land  than  the  dam  with  its 
flash-boards  had  done,  when  in  good  and  suitable  repair. 

And  if  the  owner  of  the  dam,  or  his  predecessors,  have  in 
fact  enjoyed  and  exercised  the  right  of  keeping  up  his  dam 

1  Cowell  I'.  Thayer,  5  Mete.  253,  258;  Alder  v.  Savili,  5  Taunt.  454;  Vick- 
erie  i\  Ruswell,  13  Me.  289  ;  Ray  v.  Fleteher,  12  Cush.  200  ;  Lacy  v.  Arnett,  33 
Penn.  St.  169 ;  Bliss  v.  Rin,  17  Pick.  33.     Marcly  v.  Shultz,  29  N.  Y.  354. 

2  Burnham  v.  Keinpton,  44  N.  IL  90.  Sec  also  Smith  v.  Ross,  17  Wise.  227  ; 
ante  p.  *103. 

8  Ilynds  V.  Shultz,  39  Barb.  GOO  ;  Marcly  v.  Shultz,  29  N.  Y.  352. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  147 

and  flowing  the  land  of  another,  for  a  period  of  twenty  years, 
without  paying  damages  therefor,  or  any  claim  or  assertion 
of  a  right  to  damages  for  such  flowing,  it  is  in  itself  evidence 
of  a  prescriptive  right  to  continue  such  flowing.^ 

55.  Though  no  mere  temporary  suspension  of  flowing  to 
any  particular  height  by  reason  of  failing  to  keep  up  a  head 
of  water  in  an  artificial  pond,  by  the  lavish  use  of  the  same, 
or  by  a  want  of  repair  x)f  the  dam,  would  prevent  the  owner 
from  exercising  the  right  to  flow  to  its  original  height,  which 
lie  may  have  acquired  by  prescription,  by  restoring  the  dam 
to  ^s  original  condition,  it  would  seem  that,  in  acquiring  the 
right  by  use  and  enjoyment,  reference  is  had  to  the  actual 
extent  to  which  the  flowing  has  been  exercised  during  the 
twenty  years,  rather  than  to  the  form  or  height  of  the  dam. 
Thus,  where  A  had  flowed  B's  land  for  more  than  twenty 
years  to  a  certain  height,  during  all  which  time  his  dam 
was  leaky,  and  at  the  end  of  that  period  he  repaired  and 
tightened  the  same  without  increasing  its  height, 
*whereby  he  set  back  the  water  upon  B's  land  to  a  [*107] 
greater  extent  than  had  been  done  during  the  twenty 
years,  it  was  held  that  he  was  responsible  in  damages  for  this 
excess  in  flowing  B's  land.^ 

56.  Nor  may  the  nature  of  the  use  be  changed  from  that 
by  which  the  prescription  may  be  gained.  The  flow  of  the 
water,  if  it  be  a  watercourse  which  is  the  subject  of  the  pre- 
scription, must  remain  substantially  the  same,  both  as  to 
quantity  and  rapidity  of  the  current,  as  it  had  been  during 
the  period  in  which  the  easement  was  acquired.  Thus,  if  a 
man  shall  have  acquired  a  right  to  turn  water  through  an 
artificial  trench  across  another's  land  for  purposes  of  irriga- 
tion, and  to  enter  and  clear  the  same,  he  would  not  have  a 
right  to  convert  the  same  trench  into  the  tail-race  of  a  mill, 
and  to  widen  and  deepen  it  for  that  purpose.     So  he  may 

1  Williams  v.  Nelson,  23  Pick.  141  ;  Perrin  v.  Garfield,  37  Verm.  310;  Brace 
V.  Yale,  10  Allen,  443. 

2  Mertz  V.  Dorney.  25  Penn.  St.  519. 


148      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

not  change  the  use  of  the  trench  by  increasing  the  quantity 
flowing  tln'ough  the  same.^ 

57.  And  in  considering  further  how  far  a  change  in  the 
mode  of  using  an  easement,  while  in  the  process  of  acquiring 
it  by  use  and  enjoyment,  will  defeat  the  necessary  continu- 
ity, it  may  be  stated  in  general  terms,  that,  while  a  way,  for 
instance,  must  be  used  in  the  same  course  and  direction 
without  change  or  variation,  —  not  in  one  place  to-day  and 
in  another  to-morrow,  —  every  immaterial  change  in  this 
respect  ought  not  to  be  construed  into  a  destruction  of  its 
identity.  In  determining  this,  regard  ought  to  be  ha^to 
the  situation  of  the  country  and  habits  of  the  people  in  re- 
spect to  public  ways,  in  a  new  country,  for  instance.  And 
something  of  the  sort  might  be  allowed  in  a  private  way 
without  destroying  a  prescriptive  right ;  such  as  changing 
a  road  between  two  points  for  the  purpose  of  straightening 
it  for  the  convenience  of  the  parties,  the  way  being  kept 
open  and  used  all  the  time.^  But  a  prescriptive  right  of 
way,  whether  public  or  private,  cannot  be  gained  to  pass 
over  land  generally,  it  must  be  confined  to  a  specific  line  of 

travel.^ 
[*108]       *58.    As  prescriptions  are  often  partly  personal 

and  partly  incidental  to  the  possession  of  an  estate, 
it  sometimes  becomes  a  question  whether  the  death  of  a 
party,  or  his  ceasing  to  own  or  occupy  the  estate  with  which 
the  easement  is  connected,  operates  as  such  a  break  in  the 
continuity  of  enjoyment  as  to  defeat  the  prescription.  In 
other  words,  what  is  the  effect  upon  an  inchoate  prescription 
for  an  easement  of  the  death  of  either  of  the  parties,  or  the 
ceasing  by  one  to  own  or  to  occupy  the  dominant  or  servient 
estate  ?  And,  first,  if  such  death  or  ceasing  to  own  or  oc- 
cupy is  on  the  part  of  the  one  exercising  the  acts  of  ease- 
ment.    Where  a  user  and  enjoyment  of  an  easement  has 

1  Darlington  v.  Tainter,  7  Penn.  St.  473  ;  ante,  p.  53. 

2  Lawton  v.  Rivers,  2  M'Cord,  445. 

(    8  Gentleman  v.  Soule,  32  111.  278  ;  3  Kent,  p.  *419.    See  Gage  v.  Pitts,  8  Allen, 
527. 


Sect.  4.]  ACQUIRING  EASEMENTS   BY  PRESCRIPTION.  149 

been  begun  by  an  ancestor  for  tlie  benefit  of  an  estate  which, 
upon  his  death,  descends  to  his  heirs,  and  the  use  is  con- 
tinued by  the  heir  so  long  that  the  two  periods  united  will 
be  equal  to  twenty  years'  adverse  enjoyment,  the  prescription 
will  be  complete.  The  same  would  be  true  in  case  of  vendor 
and  vendee,  or  any  person  claiming  as  privy  in  estate  with 
a  previous  occupant,  provided  the  enjoyment  were  continu- 
ous though  no  mention  is  made  in  the  deed  of  the  easement.^ 
But  if  there  is  an  actual  break  or  interruption  in  the  occu- 
pancy or  user,  a  new  occupation  or  user  would  be  the  com- 
mencement of  a  new  period  of  prescription.  Nor  can  the 
time  of  one  adverse  enjoyment  be  united  with  that  of  a 
second,  who  does  not  claim  under  the  first  by  privity  of 
estate.^ 

69.  Thus,  where  successive  persons  had  flowed  another's 
land  for  a  period  exceeding  twenty  years,  it  was  held  that, 
in  order  to  gain  a  prescriptive  right  to  do  this,  the  flowing 
must  have  been  continued  for  twenty  years  by  the  same 
person,  or  some  one  under  whom  he  claims  title.  And  if  it 
be  done  by  a  succession^of  persons,  each  of  whom  has  acted 
independently  of  any  right  acquired  from  his  predecessor,  no 
one  of  them  will  thereby  have  acquired  an  easement 
or  prescription  in  his  favor.  So  if  one  of  *successive  [*109] 
owners,  who  have  enjoyed  the  right  claimed  for 
twenty  years,  had  done  so  by  permission  of  the  owner  of  the 
servient  estate,  it  would  prevent  the  twenty  years'  enjoyment 
creating  a  prescriptive  right.^ 

60.  So  where  the  owner  of  the  dominant  estate  used  a  way 
for  two  years,  and  then,  after  some  years'  interval,  sold  his 

1  Leonard  v.  Leonard,  7  Allen,  277;  Kent  v.  Waite,  10  Pick.  138;  Hill  v. 
Crosby,  2  Pick.  466;  Sargent  v.  Ballard,  9  Pick.  251;  Williams  v.  Nelson,  23 
Pick.  142. 

2  Sargent  v.  Ballard,  9  Pick.  251 ;  Melvin  v.  Whiting,  13  Pick.  184  ;  3  Kent, 
Comm.  444, 445  ;  M'Farlin  v.  Essex  Co.,  10  Cush.  304  ;  Inst.  2,  6,  8  ;  Okeson  v. 
Patterson,  29  Penn.  St.  22.     Tracy  v.  Atherton,  36  Verm.  503. 

3  Benson  v.  Soule,  32  Me.  39  ;  Winship  v.  Hudspeth,  10  Exch.  5  ;  Perrin  v. 
Garfield,  37  Verm.  309. 


150  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

estate  to  one  who  used  it  for  eighteen  years,  it  was  held  not 
to  give  a  prescriptive  right  by  what  the  law  considers  an 
uninterrupted  and  continuous  use.^ 

61.  So  if  the  owner  of  the  dominant  estate  were  to  become 
the  occupant  of  the  servient  estate,  by  a  lease  from  the 
owner  thereof,  during  the  twenty  years  of  his  using  and 
enjoying  the  easement  claimed,  it  would  so  break  the  con- 
tinuous adverse  enjoyment  as  to  defeat  a  prescription  there- 
for.2 

In  one  case  the  owner  of  land  upon  one  side  of  a  stream 
leased  it  for  thirty-four  years  to  the  owner  or  tenant  of  the 
land  upon  the  opposite  side.  The  lessee  then  went  on  and 
erected  a  dam  above  the  plaintiff's  land,  and  thereby  raised  a 
head  of  water,  and  by  a  canal  dug  therefrom  to  works  erected 
upon  the  side  opposite  the  plaintiff's  land,  and  thereby 
diverting  the  water  from  the  bed  of  the  stream,  created  a 
large  manufacturing  establishment  thereon.  About  the  time 
of  the  expiration  of  the  lease,  the  lessor  conveyed  his  land 
to  the  plaintiff,  who,  after  a  few  years,  sought  to  enjoin  the 
defendant  from  diverting  the  watef  of  the  stream  from  its 
former  channel  and  the  plaintiff's  land.  It  was  held  that 
this  enjoyment  of  the  diversion  being  under  a  lease,  where 
the  owner  of  the  land  could  not  interfere,  was  not,  in  law, 
adverse,  and  gave  the  lessee  no  right  to  continue  it  after 
such  lease  had  expired.  Nor  was  the  land-owner  estopped 
by  standing  by  and  seeing  the  defendant  incur  heavy  charges 
in  constructing  his  works,  inasmuch  as  he  had  no  right  to 
interfere  by  way  of  assent  or  dissent  with  the  erection  of  the 
works.  And  the  injunction  was  granted,  though  the  effect 
of  restoring  the  stream  to  its  original  watercourse  and  the 
plaintiff's  land,  was  to  destroy  the  defendant's  works.^ 

62.  So  where  there  were  two  adjacent  estates,  and  the 
owner  of  the  one  had  charge  of  the  other,  as  agent  of  the 

1  Kilburn  v.  Adams,  7  Mctc.  3.3. 

2  Clay  V.  Thaokrali,  9  Carr.  &  P.  47  ;  Olney  v.  Gardiner,  4  Mccs.  &  W.  496 ; 
Holland  v.  Long,  7  Gray,  486. 

.,  8  Corning  v.  Troy  Iron,  &c.  Co.,  39  Barb.  311  ;  s.  c,  22  IIow.  Pr.  Cas.  217 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  151 

owner,  which  was  occupied  by  a  succession  of  tenants  for 
short  periods  of  time,  amounting  to  twenty  years,  it  was  held 
that  no  casement  was  gained  by  the  owner  of  the  second 
estate,  by  user  of  a  way  over  the  other,  while  such  second 
estate  was  in  possession  of  these  successive  tenants;  —  1st, 
because,  having  charge  of  both,  it  could  not  be  treated  as 
adverse  ;  and  2d,  because, 'these  successive  tenants  not  being 
in  privity  with  each  other,  there  could  be  no  continued 
adverse  enjoyment  as  against  the  servient  estate.^ 

63.  One  owning  land  upon  one  side  of  a  highway  occupied 
a  parcel,  for  piling  lumber,  upon  the  opposite  side  of  the 
way,  for  the  space  of  two  years,  by  an  arrangement  with  the 
owner  by  which  he  was  to  purchase  the  same,  and  in  the 
mean  time  was  tenant  at  will  of  the  parcel.     At  the 

*end  of  the  two  years  he  sold  his  land  to  a  third  [*110] 
party,  who  continued  to  occupy  that  on  the  opposite 
side  of  the  road  for  the  next  eighteen  years.  It  was  held 
that  here  had  not  been  an  adverse  possession  for  twenty 
years,  since,  during  the  first  two,  the  occupancy  was  not 
adverse  ;  and,  besides,  the  possession  of  a  tenant  at  will  was 
not  assignable,  so  that  the  purchaser  could  avail  himself  of 
the  benefit  of  it.^ 

64.  On  the  other  hand,  if  the  owner  of  the  servient  estate 
die  during  the  period  of  twenty  years'  enjoyment  by  the 
dominant  estate,  leaving  only  minor  heirs,  it  is  held  by  some 
courts  to  be  an  interruption  to  the  prescription,  so  long  as 
such  minority  remains.  But  it  would  not  so  far  defeat  it 
but  that,  if  the  user  were  continued  long  enough  after  the' 
minor  heirs  became  of  age  to  make  the  period  before  the 
ancestor's  death  and  that  after  the  minority  of  the  heirs  had 
ceased  together  equal  to  twenty  years,  it  would  make  a  good 
prescription.^ 

1  HoUand  v.  Long,  7  Gray,  486. 

2  Plumer  v.  Brown,  8  Mete.  578. 

3  Melvin  V.  Whitino:,  13  Pick.  184,  188;  Watkins  v.  Peck,  13  N.  H.  360; 
Lamb  v.  Crosland,  4  Rich.  536.  See  Arbuckle  v.  Wood,  29  Vt.  43,  where  the 
exception  of  minority  of  the  heirs  is  not  alluded  to  by  the  court,  and  post, 
pi.  73. 


152  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

65.  As  a  general  proposition,  as  will  hereafter  appear,  an 
easement  cannot  be  acquired  by  prescription  against  a  re- 
versioner of  the  servient  estate,  by  use  and  enjoyment  during 
the  occupation  thereof  by  a  tenant ;  yet  if  the  use  be  begun 
adversely  to. the  owner  of  the  servient  estate,  and  he  part 
with  his  possession  thereof  to  a  tenant,  such  possession  by 
the  tenant  will  not  operate  as  an  interruption  to  the  acqui- 
sition of  a  prescriptive  right  to  such  easement,  if  the  enjoy- 
ment thereof  is  continued. ^ 

And  it  may  be  added,  that,  unless  the  acts  of  prescription 
operate  against  all  persons  having  estates  in  the  premises, 
the  party  exercising  them  gains  thereby  no  prescriptive 
rights  against  the  tenant  or  any  one.  Thus,  where  one  has 
used  a  right  of  way  adversely  to  a  tenant  for  years 
[*111]  or  for  *life,  for  more  than  twenty  years,  inasmuch  as 
it  did  not  affect  the  right  of  the  reversioner,  it  did  not 
operate  to  create  any  prescriptive  right  against  the  tenant.^ 

By  a  recent  English  statute  one  tenant  for  years  may  gain 
an  easement  of  light  against  another  tenant  for  years,  after 
an  adverse  enjoyment  of  twenty  years,  though  both  tenants 
hold  by  simultaneous  leases  from  the  same  landlord.^ 

66.  In  the  next  place,  to  gain  a  prescriptive  right  to  the 
use  and  enjoyment  of  any  easement  by  a  long  continuance 
of  the  same,  it  must  have  been  done  with  the  knowledge 
and  acquiescence  of  him  who  was  seized  of  an  estate  of  in- 
heritance as  owner  of  the  servient  estate.^ 

The  maintaining  of  a  mill-dam  is  such  an  act  of  notoriety, 
•that  the  law  will  presume  a  knowledge  of  it  on  the  part  of 
the  land-owner  living  near  it.^ 

1  Cross  V.  Lewis,  2  Barnew.  &  C.  686.  See  Pearsall  v.  Post,  20  Wend.  Ill  ; 
Bright  V.  Walker,  1  Croinpt.  M.  &  R.  211  ;  post,  pi.  70.  McGregor  v.  Wait,  10 
Gray,  75. 

2  Bright  V.  Walker,  1  Crompt.  M.  &  R.  211  ;  Tud.  Lead.  Cas.  118. 
8  2  &  3  Wm.  4,  671  ;  Frcwen  v.  Phiiipps,  11  C.  B.,  n.  S.  449. 

f    *  Bradbury  v.  Grimsel,  2  Saund.  175  J;  Daniel  v.  North,  11  East,  372;  In- 
graham  V.  Hough,  1  Jones,  No.  C.  42  ;  La.  Civ.  Code,  Art.  727  ;  ante,  sect.  4, 
pi.  4. 
&  Pcrrin  v.  Garfield,  37  Verm.  311. 


Sect.  4.]  ACQUIRING  EASEMENTS   BY   PRESCRIPTION.  153 

67.  What  shall  constitute  the  evidence  of  such  knowledge 
and  acquiescence  depends  upon  the  circumstances  of  the 
case.  The  language  of  the  court  in  Blake  v.  Everett  is  this : 
"  There  need  not  be  a  claim  of  right  to  the  way  in  words,  or 
an  admission  by  the  owner  of  the  land  in  words,  that  he 
knew  of  the  adverse  use  and  claim  of  right :  twenty  years 
of  adverse  use,  continually  and  uninterruptedly,  with  the 
knowledge  and  acquiescence  of  the  owner  of  the  land,  in  the 
absence  of  any  evidence  of  permission  and  license,  is  suffi- 
cient praof  of  the  existence  of  such  easement."^ 

The  court,  in  Beasley  v.  Clarke,  which  was  a  case  under 
the  statute  2  &  3  William  IV.  c.  71,  §  5,  held  that,  to  a 
plea  of  a  right  of  way  by  user,  <fec.,  "  the  plaintiff  is  at 
liberty  to  show  the  character  and  description  of  the  user  and 
enjoyment  of  the  way  during  any  part  of  the  time  ;  as  that 
it  was  used  by  stealth  or  in  the  absence  of  the  occupier  of  the 
close,  and  without  his  knowledge  ;  or  that  it  was  merely  a 
precarious  enjoyment  by  leave  and  license,  or  any  other  cir- 
cumstances which  negative  that  it  is  an  user  or  enjoyment 
under  a  claim  of  right."  ^ 

And  in  Solomon  v.  Vintners'  Co.,  Bramwell,  B.  says: 
"  It  was  an  enjoyment  clam,  not  open,  and  consequently  not 
as  of  right."  3 

This  doctrine  was  applied  in  the  case  of  a  drain  con- 
structed by  the  owner  of  two  or  more  houses  which  he 
afterwards  conveyed  to  different  purchasers,  and  the  drain 
remained  more  than  twenty  years,  but  was  not  known  by 
the  owner  of  either  house  to  exist.  It  was  held  that  such 
an  enjoyment  of  the  drain  did  not  give  the  upper  estate  a 
right  to  maintain  it  through  the  lower  one  as  a  prescriptive 
easement.^ 

1  Blake  v.  Everett,  1  Allen,  248  ;  Gray  v.  Bond,  2  Brod.  &  B.  667  ;  Smith  v. 
Miller,  11  Gray,  148. 

2  Beasley  v.  Clarke,  2  Bing.  N.  C.  705  ;  Tickle  v.  Brown,  4  Adolpli.  &  E.  369. 
8  Solomon  v.  Vintners'  Co.,  4  Hurlst.  &  N.  G02. 

*  Carbrey  v.  Willis,  7  Allen,  368. 


154  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

[*112]  *And  Putnam,  J.,  in  Sargent  v.  Ballard,  quotes 
the  words  of  Bracton  :  "  Possessio  per  longura  con- 
tinuum et  pacificum  usum,  sine  consensu  express©, 
per  patentiam  veri  domini,  qui  scivit  et  non  proliibuit,  sed 
permisit  de  consensu  tacito,"  —  "  It  must  be  with  the  knowl- 
edge and  permission  of  the  owner,  and  not  merely  of  the 
tenants."  ^ 

68.  The  maxim  is,  "  Ita  quod,  nee  per  vim,  nee  clam,  nee 
precario."^ 

If,  therefore,  it  should  appear  that,  during  the  period  of 
the  alleged  acquisition  of  an  easement  by  use  and  enjoy- 
ment, the  owner  of  the  servient  tenement  resisted  such 
claim,  or  opposed  such  "use,  it  would  negative  the  claim. 

It  was  accordingly  held  that  a  prescriptive  right  to  divert 
water  from  a  stream  could  not  be  acquired  by  an  enjoyment 
for  the  requisite  period,  where  it  appeared  that  the  party, 
against  whom  it  was  claimed,  during  that  time  remonstrated 
against  such  diversion,  and  consulted  counsel  for  a  prosecu- 
tion therefor.^ 

Thus  where,  though  one  had  flowed  another's  lands  for 
more  than  twenty  years,  it  appeared  that  the  latter  had  com- 
plained thereof,  and  denied  his  right  so  to  do,  it  was  held 
that  it  rebutted  the  presumption  of  its  having  been  enjoyed 
under  a  grant.* 

So  in  Powell  v.  Bagg,  the  defendant  claimed  an  easement 
of  an  aqueduct  across  the  plaintiff's  land,  by  an  enjoyment 
for  the  term  of  thirty-eight  years,  which  he  proved.  It  was 
held  that,  if  the  owner  of  the  land,  being  upon  it,  forbade 
the  other  party  to  enter  upon  the  land,  and  make  use  of  the 
aqueduct,  it  was  enough  to  prevent  his  acquiring  an  ease- 

1  Sargent  v.  Ballard,  9  Pick.  251  ;  Bract.  52  b.  c.  23,  §1-  Edson  v.  Munsell, 
10  Allen,  567. 

2  Bract.,  fol.  222  ;  D.  39,  3,  23;  Co.  Litt.  114  a  ;  Eaton  v.  Swansea  Water- 
works Co.,  17  Q.  B.  267.  Per  Bramwdl,  B.,  Solomon  v.  Vintners'  Co.,  4  Hurlst. 
&  N.  602. 

3  Stillman  v.  White  Rock  Co.,  3  W.  &  Min.  549.  See  Bcaly  v.  Shaw,  6  East, 
216. 

*  Nichols  V.  Aylor,  7  Leiyh,  54G,  565. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  155 

mcnt  by  such  use  and  enjoyment.  Nor  was  it  necessary,  in 
order  to  defeat  such  a  claim,  that  the  land-owner  should 
show  that  he  resisted  the  claimant  by  acts  of  violence  or 
force  to  eject  him.  To  have  one  gain  an  easement,  it  not 
only  must  be  claimed  adversely,  but  it  must  be  acquiesced 
in  by  the  owner  of  the  land,  under  a  claim  of  right.  And  if, 
before  the  expiration  of  twenty  years  from  the  time  the 
right  was  first  claimed,  the  owner  of  the  land,  by  a 
verbal  *act  on  the  premises  in  which  the  easement  is  [*113] 
claimed,  resists  the  exercise  of  the  right,  or  denies 
its  existence,  the  presumption  of  grant  is  rebutted,  liis  acqui- 
escence is  disproved,  and  the  essential  elements  of  a  title  to 
an  easement  by  adverse  use  are  sho'wn  not  to  exist.  In  this 
respect  there  is  a  material  difference  between  an  actual  dis- 
seizin of  lands,  where  the  disseizor  continues  in  possession, 
and  an  easement ;  for  in  the  latter  case  the  owner  of  the 
land  remains  in  possession,  and  there  is  no  disseizin,  and  the 
title  to  the  easement  rests  chiefly  on  an  acquiescence  in  an 
adverse  use.^ 

So  in  the  case  of  Eaton  v.  Swansea  Waterworks  Co., 
above  cited,  it  was  held  that,  to  gain  an  easement,  it  must 
have  been  enjoyed  without  contention  or  resistance  by  the 
owner  of  the  land :  "  It  seems  clear  that,  if  the  enjoyment 
is  clandestine,  contentious,  or  by  sufferance,  it  is  not  of  right. 
Enjoyment  of  a  right  must  be  nee  clam,  nee  vi,  nee  precario.''^ 
And  it  was  accordingly  held  that,  where  the  servant  of  one 
claiming  an  easement  to  draw  water  was  prosecuted  for  ex- 
ercising that  right,  and  the  master  paid  the  penalty,  without 
appealing,  it  was  competent  evidence  to  prove  that  he  had  not 
enjoyed  it  as  a  matter  of  I'ight  for  twenty  years.^ 

And  in  another  case,  where  one  had  used  a  way  over 
twenty  years,  but  it  appeared  that  it  had  always  been  a  sub- 
ject of  contention,  it  was  held  that  the  jury  were  justified 

1  Powell  V.  Bagg,  8  Gray,  441.  See  Ingraham  v.  Hough,  1  Jones,  No.  C.  39. 
Tracy  v.  Atlierton,  36  Verm.  514. 

2  Eaton  V.  Swansea  "Waterworks  Co.,  17  Q.  B.  267,  269. 


156  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cn.  I. 

in  negativing  a  prescriptive  grant.     "  Nothing  but  an  unin- 
terrupted usage  can  raise  a  presumption  of  a  grant."  ^ 

69.  Another  essential  circumstance  in  the  use  and  enjoy- 
ment of  an  easement,  in  order  to  gain  thereby  a  prescriptive 
right  to  the  same,  is  that,  while  it  was  thus  being  gained, 
the  owner  of  the  servient  estate  was  able,  in  law,  to  assert 
and  enforce  his  rights,  and  to  resist  such  adverse  claim,  if 

not  well  founded. 
[*114]       *No  presumption  of  grant,  therefore,  arises  from 

adverse  enjoyment  against  a  feme  covert  or  a  minor  ,2 
or  an  insane  person, ^  nor  would  the  admission  of  a  feme  co- 
vert that  such  grant  existed  be  admitted  as  evidence  against 
her.4 

But  where  a  female  minor  married  after  the  period  of  ad- 
verse enjoyment  had  begun  to  run,  it  was  held  that  such 
second  disability  is  disregarded  in  determining  the  question 
of  a  prescriptive  right  thus  acquired.^ 

This  involves  the  effect  of  the  servient  estate  being  in  the 
occupation  of  a  tenant,  or  the  owner  thereof  being  a  minor 
during  all  or  a  portion  of  the  alleged  period  of  prescription. 

70.  In  addition  to  what  has  already  been  said,  it  may  be 
stated,  with  few  if  any  qualifications,  that  neither  a  remain- 
der-man nor  a  reversioner  can  be  affected  by  any  use  or 
enjoyment  of  an  easement  in  or  overi^the  servient  estate,  by 
way  of  thereby  creating  a  prescriptive  right  in  respect  to  the 
same,  while  his  land  is  in  the  possession  and  occupation  of  a 
tenant  for  life  or  years.^ 

1  Livett  V.  Wilson,  3  Bing.  115.     Smith  v.  Miller,  11  Gray,  148. 

2  Watkins  v.  Peck,  13  N.  H.  360  ;  Melvin  v.  Whiting,  13  Pick.  184;  Reimer 
V.  Stuher,  20  Penn.  St.  4.58,  463.  See  Mebane  v.  Patrick,  1  Jones,  No.  C.  i26 ; 
3  Toullier,  Droit  Civil  Fran9ais,  418,  419  ;  Merlin,  Repertoire  de  Jurisprudence, 
tit.  Prescription,  Sect.  1,  ^  7,  Art.  2  ;  Lalaure,  Traite'  des  Servitudes  Re'elles,  34  ; 
ante,  sect.  3,  pi.  1. 

8  Edson  V.  Miinscll,  10  Allen,  557. 

*  M'Gregor  v.  Wait,  10  Gray,  74. 

''  Reimer  i>.  Stuber,  20  Penn.  St.  458,  463 ;  Schenley  v.  Commonwealth,  &c., 
36  Penn.  St.  29. 

6  Bradbury  v.  Grimsel,  2  Saund.  175  c? ;  Daniel  v.  North,  11  East,  372  ;  Par- 
ker V.  Framingham,  8  Mete.  260 ;  Pierre  v.  Fernald,  26  Me.  436 ;  Blanchard  v. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION,  157 

In  the  case  of  Daniel  v.  North,  there  is  a  doubt  expressed 
as  to  the  effect  upon  the  rights  of  the  reversioner  of  an  en- 
joyment of  an  easement  for  twenty  years  in  an  estate  while 
in  a  tenant's  hands,  if  the  reversioner  had  been  cognizant 
thereof.  But  the  case  of  Barker  v.  Richardson,  as  well  as 
the  reasoning  of  the  court  in  Daniel  v.  North,  seems  to  settle 
the  point^that  no  adverse  enjoyment  of  an  easement  by  a 
dominant  over  a  servient  estate  can  affect  the  rights  of  the 
reversioner,  though  enjoyed  adversely  by  the  owner 
of  the  *former,  if  the  latter  were  in  the  possession  of  [*115] 
a  tenant  for  life  during  such  adverse  enjoyment. 
The  reason  of  this  is,  that  a  prescription  operates  only 
against  one  who  is  "capable  of  making  a  grant."  And  a 
tenant  for  life  cannot  make  a  grant  which  shall  affect  the 
estate,  when  it  shall  come  into  a  reversioner's  hands. ^ 

In  Wood  V.  Yeal,  the  premises  over  which  a  way  was 
claimed,  by  adverse  use  and  enjoyment  for  a  long  space  of 
time,  —  longer,  in  fact,  than  human  memory,  —  had  been 
during  this  time  in  the  possession  of  a  tenant  for  ninety-nine 
years,  which  had  then  recently  expired,  and  it  was  held  that 
no  right  was  thereby  gained  against  the  owner  of  the  inher- 
itance.^ 

But,  as  already  stated,  it  would  seem  that  if,  after  such 
adverse  use  and  enjoyment  had  begun  by  the  owner  of  the 
dominant  estate,  the  owner  of  the  servient  estate  should  part 
with  his  possession  to  a  tenant,  and  the  same  should  con- 
tinue to  be  used  as  before,  an  easement  might  be  gained  by 
prescription  after  twenty  years'  enjoyment.^ 

Bridges,  4  Adolph.  &  E.  176  ;  Barkers.  Richardson,  4  Barnew.  &  Aid.  579; 
Bright  V.  Walker,  1  Crompt.  M.  &  R.  211  ;  Baxter  v.  Taylor,  4  Barnew.  &  Ad. 
72;  Reimcr  I'.  Stiiber,  20  Penn.  St.  4.58;  Schenley  v.  Commonwealth,  &c.,  36 
Penn.  St.  29;  Tud.  Lead.  Cas.  116;  Runcorn  v.  Doe,  5  Barnew.  &  C.  696; 
ante,  sect.  3,  pi.  32. 

1  Barker  v.  Richardson,  4  Barnew.  &  Aid.  579.  See  Davies  v.  Stephens,  7 
Carr.  &  P.  570;  Merlin,  Repertoire  de  Jurisprudence,  tit.  Prescription,  Sect.  1, 
§  7,  Art.  2,  Qiies.  13 ;  McGregor  v.  Waite,  10  Gray,  75. 

2  Wood  V.  Veal,  5  Barnew.  &  Aid.  454. 

2  See  Cross  v.  Lewis,  2  Barnew.  &  C.  686  ;  Mebane  v.  Patrick,  1  Jones,  No. 
C.  23. 


158  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

But,  for  various  reasons,  if  the  owner  of  the  dominant  es- 
tate becomes  himself  a  tenant  of  the  servient  estate,  no  en- 
joyment of  an  easement  during  such  unity  of  possession  could 
be  adverse,  or  lay  the  foundation  for  a  prescription. ^ 

71.  On  the  other  hand,  though  it  is  clear  that  a  tenant  for 
life  of  a  dominant  estate  may  acquire  an  easement  in  a  ser- 
vient one  by  adverse  enjoyment,  it  does  not  seen#  to  be  set- 
tled whether  it  would,  when  acquired,  enure  in  favor  of  him 
who  has  the  inheritance  by  way  of  re  version. ^ 

But  though  in  the  above-cited  case  the  court  avoid  the 
question,  it  would  seem  that,  if  the  tenant  held  by 
[*116]  lease  *from  the  tenant  of  the  fee  of  the  dominant  es- 
tate, an  easement  gained  by  such  a  holding  by  the 
tenant  would  enure  to  the  landlord's  benefit,  in  analogy  with 
the  doctrine  of  a  class  of  cases  which  hold  that,  if  a  tenant  by 
disseizin  extends  his  holding  over  a  neighboring  parcel  of 
land  till  a  prescriptive  title  is  gained,  it  will  enure  to  the 
benefit  of  his  landlord.^ 

72.  But  in  respect  to  the  principal  proposition,  it  may  be 
stated  that,  if  an  easement  is  claimed  by  an  adverse  enjoy- 
ment, with  the  knowledge  of  the  owner  of  the  servient  es- 
tate, it  must  be  while  he  or  those  under  whom  he  claims 
have  the  absolute  ownership  thereof.  And  if  it  shall  have 
begun  while  the  premises  were  in  the  possession  of  one  hav- 
ing a  particular  estate  therein,  which  may  have  continued 
for  any  part  of  the  time  it  was  enjoyed,  so  much  thereof  is  to 
be  deducted,  and  there  must  have  bemi  twenty  years  of  such 
enjoyment,  exclusive  of  the  period  for  which  the  tenant  of 
the  particular  estate  thus  held  possession.^ 

But  it  is  said  by  Bell,  J.,  in  Wallace  v.  Fletcher,^  that 
"  the  tenant  for  life  or  years  may  grant  easements  or  permit 
them  to  be  acquired  by  user,  and  they  will  be  valid  against 

1  Clay  V.  Thackrali,  9  Carr.  &  P.  47. 

2  Holland  v.  Long,  7  Gray,  487. 

3  Andrews  v.  Ilailcs,  2  Ellis  &  B.  349,  and  cases  therein  cited. 
*  Tearsall  v.  Post,  20  Wend.  Ill  ;  La.  Civ.  Code,  Art.  725. 

6  Wallace  v.  Fletcher,  10  Foster,  453. 


Sect.  4.]  ACQUIKING   EASEMENTS   BY   PRESCRIPTION.  159 

himself  and  those  who  hold  his  estate  during  its  continuance, 
and  perhaps  not  after\Yards,  where  the  reversioner  had  pre- 
viously neither  cause  nor  right  to  complain." 

But  it  would  seem  that,  if  the  servient  estate  be  in  the 
possession  of  one  having  a  conditional  or  determinable  fee 
in  the  same,  a  servitude  may  be  gained  against  him,  which 
would  be  defeated  if  afterwards  the  estate  of  the  servient 
tenant  fails.^ 

73.  The  effect  of  the  death  of  the  owner  of  the  servient 
estate  before  an  easement  shall  have  been  acquired  by  the 
requisite  period  of  enjoyment,  has  been  somewhat  antici- 
pated. There  would  ordinarily  be  no  difficulty  in  fixing  the 
rule  to  be  applied  in  such  cases,  if  the  heir  who  succeeded 
to  the  ancestor  were  of  age,  and  suffered  the  use  and  enjoy- 
ment to  be  continued  till  it  had  extended  to  the  period  of 
prescription. 

But  if  the  heir  were  at  the  time  under  a  disability  like 
that  of  being  a  minor,  it  is  held  by  writers  iipon  the  French 
law,  as  well  as  by  some  of  the  American  courts,  that 
during  the  period  *of  his  minority  the  prescription  is  [*117] 
suspended.  Thus  if,  after  five  years'  adverse  enjoy- 
ment against  the  owner  of  an  estate,  he  dies,  and  it  comes 
by  descent  to  a  minor  heir  of  the  age  of  five  years,  it  would 
require  a  continued  enjoyment  against  this  heir  of  thirty-one 
years  before  the  easement  could  be  gained  by  adverse  use, 
the  law  allowing  the  owner  of  the  dominant  estate  to  add 
the  period  of  enjoyment  during  the  ancestor's  life  to  that 
while  the  heir  is  tenant,  after  his  arriving  at  the  age  of 
twenty-one.^ 

The  identity  of  the  doctrine  above  stated  with  that  of  the 
French  law  will  be  perceived  by  the  following  quotation  from 
Merlin,  Repertoire  de  Jurisprudence  :  "  Au  surplus,  remar- 
quez  que,  dans  les  cas  oii  la  prescription  temporaire  ne  court 

1  3  Toullier,  Droit  Civil  Franyais,  419. 
•    2  Lamb  v.  Grassland,  4  Rich.  536 ;  Watkins  v.  Peck,  13  N.  H.  300;  Melvia  v. 
Whiting,  13  Pick.  184. 


160  THE  LAW   OF   EASEMENTS  AND   SERVITUDES.  [Cn.  I. 

pas  centre  les  mineurs,  la  miiioritd  de  I'lieriter  suspend  Men 
la  prescription  commencde  contre  le  defunt,  mais  n'empeche 
pas  qu'on  ne  joigne  au  temps  durant  lequel  on  a  possedd 
contre  celui-ci,  le  temps  qui  a  suivi  sa  majorite."  ^ 

The  same  writer  remarks  further,  that  a  prescription  which 
does  not  run  against  a  minor  will  not,  upon  the  same  prin- 
ciple, run  against  his  heir  during  his  minority .^ 

The  rule,  as  stated  in  the  Civil  Code  of  Louisiana,  is  this : 
"  It  is  not  sufficient  to  be  an  owner  in  order  to  establish  a 
servitude  :  one  must  be  master  of  his  own  rights,  and  have 
the  power  to  alienate.  Thus  minors,  married  women,  per- 
sons interdicted,  cannot  establish  servitudes  on  their  estates, 
except  according  to  the  forms  prescribed  for  the  alienation 

of  their  property."  ^ 
[*118]  *73  a.  On  the  other  hand,  some  of  the  American 
courts  hold  that  the  analogy  between  the  doctrine  of 
a  presumed  grant  from  twenty  years  enjoyment  and  the  stat- 
ute of  limitations  is  so  strong  that,  inasmuch  as  there  is  no 
exception  in  favor  of  infants,  insane  persons,  and  women 
under  coverture  in  the  latter,  unless  the  disability  exists 
when  the  statute  begins  to  run,  there  should  be  none  in  the 
acquisition  of  an  easement  by  lapse  of  time,  except  under  the 
same  circumstances.  That  the  exception  in  the  statutes  of 
limitations  is  thus  qualified  is  settled  in  the  cases  cited  be- 
low.* 

Gray  J.,  in  Edson  v.  Munsell,  has  examined  the  law  in  an 
exhaustive  manner,  upon  the  effect  of  the  disability  of  insani- 
ty of  the  owner  of  the  servient  estate  when  the  adverse  posses- 
sion began,  and  shows  clearly  that  no  length  of  enjoyment  can 

1  Merlin,  Repertoire  de  Jurisprudence,  tit.  Prescription,  Sect.  1,  §  7,  Art.  2. 
Qucs.  2. 

2  Ibid. 

3  La.  Civ.  Code,  Art.  727  ;  see  Code  Nap.,  Art.  2252. 

*  Mebane  v.  Patrick,  1  Jones,  N.  C.  23  ;  Ailis  v.  Moore,  2  Allen,  .306  ;  Currier  v. 
Gale,  3  Allen,  328  ;  Edson  i\  Munsell,  10  Allen,  557  ;  Dekay  v.  Danick,  2  Green, 
N.  J.  294;  Ilcinicr  v.  Stuhcr,  20  Penn.  463;  M'Farland  v.  Stone,  17  Verm.  174; 
Tracy  v.  Atherton,  36  Verm,  ."in  ;  Wallace  v.  Fletcher,  10  Foster,  454. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  IGl 

give  a  prescriptive  riglit  of  easement  thereon,  however  open 
and  adverse  it  may  he.  The  easement  claimed  in  that  case 
was  an  aqueduct  which  had  hecn  enjoyed  forty-three  years  un- 
interruptedly. But  as  the  owner  of  the  land  was  all  the 
time  insane,  it  was  held  that  no  right  had  thcrchy  hccn  ac- 
quired. In  two  of  the  other  cases  cited,  the  disability  was 
insanity,  which  began  after  the  statute  had  begun  to  run,  and 
in  another  the  disability  was  coverture,  assumed  after  such 
commencement  of  the  running  of  the  statute.  The  reason- 
ing of  the  court,  in  Watkins  v.  Peck,  seems  to  sustain  the  idea 
that  no  deed  can  be  presumed  to  have  been  given,  in  accord- 
ance with  the  tlieory  of  modern  prescription,  unless  the  owner 
of  the  land  against  whom  it  is  claimed  has  been  of  ability  to 
give  it  or  to  resist  the  user  of  the  easement,  during  the  whole 
and  every  part  of  the  twenty  years,  and  that  prescription  is 
not  like  the  statute  of  limitation,  an  arbitrary  and  technical 
rule  of  law.  Thus  the  C.  J.  in  that  case  says  :  "  We  are  of 
opinion  that  no  grant  can  be  presumed  from  an  adverse  use 
of  an  easement  in  the  land  of  another  for  the  term  of  twenty 
years,  where  the  owner  of  the  land  was,  at  the  expiration  of 
the  twenty  years  and  long  before,  incapal^le  of  making  a 
grant,  whether  the  disability  arose  from  infancy  or  insanity." 
"  Perhaps  a  disability  intervening  during  the  lapse  of  the  term 
but  not  extending  to  the  termination  of  the  period  of  twenty 
years,  might  not  be  sufficient  to  rebut  the  presumption  ;  but 
it  would  be  absurd  to  presume  a  grant  wJiere  it  was  clear  that 
no  such  grant  could  have  existed."  And  in  Edson  v.  Mun- 
sell.  Gray,  J.  remarks,  that  "  a  grant  cannot  be  presumed 
against  a  person  legally  incapable  of  making  it."  Neither  of 
these  cases  go  the  length  of  settling  the  question  whether  the 
occurrence  of  a  disability  on  the  part  of  the  owner  of  the 
servient  estate,  after  prescription  has  begun  to  run,  and  be- 
fore a  title  has  thereby  become  established,  suspends  the 
force  of  the  prescription.  And  the  language  of  Merrick,  J., 
in  Currier  v.  Gale,  would  seem  to  settle  the  point,  that  if  such 
disability  were  assumed,  like  becoming  covert,  it  would  not 
11 


162  THE   LAW    OF   EASEMENTS    AND   SERVITUDES.  [Cii.  I. 


« 


suspend  the  prescription.  After  stating  that  if,  after  a  dis- 
seizin and  a  lapse  of  time  reasonably  sufficient  to  enable  the 
disseizee  to  take  measures  for  the  protection  of  his  rights,  a 
disability  occurs,  it  would  not  delay  or  postpone  the  opera- 
tion of  the  statute  of  limitations,  he  adds  :  "  The  same  rule 
must,  for  the  same  reason,  prevail  in  relation  to  easements 
or  other  rights  acquired  by  prescription,  or  to  titles  estab- 
lished and  confined  by  open  adverse  possession."  And  this 
language  is  quoted  with  approbation  by  Gray,  J.,  in  Edson  v. 
Munsell.  But  in  Lamb  v.  Crosland,  and  Mclvin  v.  Whiting, 
the  point  was  distinctly  ruled,  that,  if  the  ancestor  die  before 
the  prescription  becomes  complete,  and  the  estate  descends 
to  a  minor  heir,  the  prescription  is  suspended  during  his 
minority. 

On  the  other  hand,  the  courts  of  Vermont,  North  Carolina, 
and  New  Hampshire  hold  the  same  rule  as  to  prescription 
as  they  do  as  to  the  statute  of  limitation.  If  there  is  no 
disability  when  it  begins  to  run,  no  subsequent  disability  will 
arrest  or  suspend  the  operation  of  the  prescription.  In  the 
case  of  Tracy  v.  Atherton,^  Poland,  C.  J.,  in  an  able  and 
elaborate  opinion  maintains,  that  if  the  adverse  enjoyment 
of  a  way  be  begun  during  the  life  of  the  owner  of  the  servient 
estate,  and  he  die  before  the  term  of  prescription  has  expired, 
and  the  estate  descends  to  his  heir,  then  a  minor,  it  would 
not  work  a  suspension  of  the  prescription.  And  in  the  case 
of  Mebane  v.  Patrick,  where  a  like  doctrine  is  maintained, 
the  court  say  :  "  Such  being  the  law  as  to  the  statute  of  limi- 
tations, it  follows  it  must  be  so  in  regard  to  prescriptions." 
The  disability  in  that  case  was  insanity .^  The  same  doctrine 
was  expressly  held  in  Wallace  v.  Fletcher,^  where  it  was  de- 
nied that  any  different  doctrine  was  sustained  in  Watkins  v. 
Peck,  and  where,  of  a  disability  of  minority  in  an  heir,  to 
whom  the  estate  descended  from  an  ancestor  after  the  ad- 

1  Tracy  v.  Atlierton,  36  Verm.  503. 

2  Mebane  v.  Patrick,  1  Jones,  N.  C.  26. 

3  Wallace  v.  Fletcher,  10  Foster,  434,  4.54. 


Sect.  4.]  ACQUIRING  EASEMENTS   BY  PRESCRIPTION.  163 

verso  enjoyment  had  commenced,  the  court  say,  "  Such  in- 
tervening disabilities  should  not  defeat  the  presumption  of 
title  resulting  from  twenty  years  possession." 

Story,  J.,  in  Tyler  v.  Wilkinson,^  in  speaking  of  the  effect 
of  the  presumption  which  arises  from  the  long  enjoyment  of  a 
privilege,  says  :  "  Its  operation  has  never  yet  been  denied  in 
cases  where  personal  disabilities  of  particular  proprietors 
might  have  intervened,  such  as  infancy,  coverture,  and  in- 
sanity." 

But  the  court,  in  Lamb  v.  Crosland,  assume,  that  when 
making  this  ruling,  "  he  did  not  bear  in  mind  the  distinction 
between  a  right  claimed  by  prescription  and  a  presumption 
of  right  from  a  non-existing  grant."  And  it  is  questionable 
if  the  same  criticism  might  not  apply  to  the  case  of  Wallace 
V.  Fletcher.  But  there  is  one  remark  in  the  latter  case 
which  has  a  very  important  bearing  upon  the  question  under 
consideration  :  "  It  strikes  us  that  the  legitimate  and  natural 
tendency  of  evidence  of  user  may,  in  many  cases,  be  rather 
to  prove  a  deed  existing  before  the  commencement  of  the 
user,  than  one  executed  during  the  time  of  the  use,  or  at  its 
termination." 

The  court  of  Pennsylvania  seem  also  to  adopt  the  same 
rule  as  to  prescription  as  they  do  in  respect  to  the  statute  of 
limitations,  in  the  matter  of  its  running  against  a  minor  or 
feme  covert.^ 

It  would  not,  probably,  be  possible  to  reconcile  these  dif- 
ferent rules.  And  while  one  class  of  courts  hold  that  the 
doctrine  of  prescription  is  merely  the  statute  of  limitations 
applied  to  incorporeal  hereditaments,  and  the  other  that  in 
order  to  imply  the  existence  of  a  grant  there  must  have  been 
an  adverse  enjoyment  for  the  term  of  twenty  years,  during 
the  whole  of  which  time  there  was  some  one  in  possession  of 
the  servient  estate  who  could  have  granted  or  resisted  the 
enjoyment,  there  will  be  two  sets  of  rules,  the  one  or  the 

1  Tyler  v.  Wilkinson,  4  Mason,  402. 

2  lleiracr  v.  Stuber,  20  Penn.  463. 


164  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cii.  I. 

other  to  be  applied  according  to  the  local  law  of  the  State 
where  the  case  may  arise. 

74.  The  last  clause  in  the  definition  of  what  is  necessary 
to  create  a  prescription,  —  that  it  must  be  of  something  which 
could  have  been  granted  by  one  party  to  the  other,  —  has 
been  pretty  fully  anticipated  ;  and  yet  it  may  be  well  to  refer 
to  one  or  two  authorities  bearing  upon  this  proposition, 
although  it  is  implied  from  the  familiar  doctrine,  that  every 
prescription  is  based  upon  an  assumed  original  grant. 

If,  for  instance,  two  adjacent  proprietors  of  lands  occupy 
them  in  a  manner  which  each  would  have  a  legal  right  to  do, 
without  obtaining  any  leave  or  permission  from  the  other, 
neither  can  insist,  as  a  prescriptive  right,  that  the 
[*119]  other  shall  *continue  such  mode  of  occupation, 
although  in  its  effect  it  operates  a  benefit  to  his 
own  estate.  Such  benefit,  though  derived  from  another's 
estate,  is  not  an  easement  in  or  out  of  the  same  in  favor  of 
his  own.  Thus,  one  built  a  dam  upon  his  own  land,  which 
so  regulated  and  controlled  the  flow  of  the  water  of  the 
stream  that  it  no  longer  was  discharged  upon  the  land  of  a 
proprietor  below  in  such  quantities  as  to  flood  the  same,  as  it 
had  been  accustomed  to  do  before  the  erection  of  the  dam, 
and  the  owner  of  the  land,  by  digging  ditches  therein,  was 
able  to  drain  it  and  cultivate  it.  This  he  enjoyed  for  more 
than  twenty  years,  when  the  owner  of  the  dam  cut  it  away, 
and  sufiered  the  water  to  flow  as  formerly,  and  the  land  of 
the  lower  proprietor  was,  consequently,  again  flooded  and 
damaged.  But  it  was  held  that  he  was  without  a  remedy 
for  the  injury,  since  he  had  acquired  no  easement  to  have 
the  water  kept  back,  for  he  had  done  nothing  adverse  to  the 
rights  of  the  upper  owner,  nor  had  the  latter  done  anything 
adverse  to  him.  The  benefit  derived  to  the  land  below  was 
merely  incidental  to  the  lawful  act  of  another's  erecting  the 
dam  upon  his  own  land  above.  The  law  would  not  presume, 
in  such  use,  that  either  of  these  owners  had  granted  any- 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  165 

thing  to  the  other,  since  each  liad  whatever  he  enjoyed,  inde- 
pendently of  the  other.i 

And  it  is  said  in  Wheateley  v.  Baugh,  that  "  no  man,  by 
the  mere  prior  enjoyment  of  the  advantages  of  his  own  land, 
can  establish  a  servitude  upon  the  land  of  another."  ^ 

And,  as  stated  by  Swift,  J.,  in  Chalkcr  v.  Dickinson,  it  is 
always  competent  to  rebut  a  presumption  arising  from  the 
enjoyment  of  what  answers  to  an  easement,  by  proof  of  such 
circumstances  as  show  that  no  grant  could  have  been  made.^ 
As  there  can  be  no  grant  by  a  man  to  himself,  nor  an  ad- 
verse use  of  his  own  land  by  one  as  against  himself, 
it  may  *be  regarded  as  a  mere  truism  to  say  that  no  [*120] 
length  of  use  of  a  way,  for  instance,  by  a  man  over 
one  parcel  of  his  laud  to  another,  can  create  an  easement  of 
way  in  favor  of  the  latter  parcel.  No  one  can  prescribe  in 
his  own  land.* 

75.  But  by  the  cases  cited,  as  has  been  more  fully  ex- 
plained in  another  connection,  though  a  way,  for  instance, 
thus  used  for  the  benefit  of  one  of  two  parcels  of  land  over 
another  belonging  to  the  same  owner,  would  not  pass  as 
appurtenant  to  such  parcel  upon  a  grant  of  the  same,  it 
might  pass  if  the  parcel  were  conveyed  "  with  all  ways."  ° 

76.  The  following  case  has  been  selected,  though  some- 
what complicated  in  its  facts,  as  furnishing  an  illustration 
of  several  of  the  propositions  to  which  the  reader's  attention 
has  been  called.  The  case  is  Watkins  v.  Peck,  and  was 
very  elaborately  and  ably  considered  by  Parker,  C.  J.  The 
facts  were  briefly  these.  An  aqueduct  had  been  laid  from  a 
spring  of  water  to  the  estate  S.,  from  which  point  an  aque- 
duct was  laid  in  1796  or  1797  to  the  Bellows  House,  and 
had  continued  to  run  there  till  1838.     In  1812,  aqueducts 

1  Felton  V.  Simpson,  11  Ired.  84. 

2  Wheateley  v.  Baugh,  2.5  Penn.  St.  528. 

3  Chalkcr  v.  Dickinson,  1  Conn.  382. 

*  Atkins  V.  Bordman,  2  Mctc.  457  ;  Ritger  v.  Parker,  8  Cush.  145  ;  Cooper  i-. 
Barber,  3  Taunt.  99  ;  Gayctty  v.  Bcthune,  14  Mass.  49. 
s  Staple  V.  Ilcydon,  6  Mod.  3. 


166  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Ch.  I. 

were  laid  from  the  Bellows  House  to  the  estates  of  Gage  and 
Watkins,  by  which  the  surplus  water  not  needed  at  the  Bel- 
lows House  was  conducted  to  these  estates,  and  used  there 
up  to  1838.  Subsequent  to  1812,  Buffiim  laid  an  aqueduct 
from  S.  to  his  own  house,  and  took  a  portion  of  the  water 
which  flowed  from  the  spring  to  that  point,  and  which  did 
not  flow  to  the  Bellows  House.  This  he  continued  to  use 
up  to  1838.  In  1812,  Cochrane  became  the  owner  of  the 
estate  S.,  and  held  it  till  his  death  in  1821,  but  never  in- 
terfered with  the  use  of  either  of  the  aqueducts.  He  left 
four  children,  one  a  minor,  to  whom  his  estate  passed.     In 

1838,  Peck  purchased  S.  estate  of  these  children,  one 
[*121]  of  them  still  being  a  minor,  and  denied  the  *rights 

of  Buffum  and  Bellows,  and  Gage  and  Watkins, 
to  draw  water  by  the  aqueducts  then  in  use.  Whatever 
rights  they  had  to  any  of  the  aqueducts  depended  upon  user 
and  enjoyment,  as  no  deeds  had  ever  been  made  granting 
their  use. 

One  objection  to  the  claim  of  an  easement  in  such  aque- 
ducts by  an  enjoyment  thereof  was,  that,  by  the  death  of 
Cochrane  in  1821,  leaving  one  of  his  heirs  a  minor,  and  the 
estate  S.  having  remained  undivided  till  1838,  no  user  and 
enjoyment  between  these  periods  could  gain  an  easement 
in  the  S.  estate.  And  the  court  held  that  such  was  the 
law,  and  that  it  made  no  difference  that  the  other  children 
had  been  of  age  during  that  time,  since  the  easement  claimed 
was  of  that  which  was  of  itself  indivisible,  and  could  not 
be  used  without  being  done  adversely  to  the  minor,  and 
therefore  could  not  be  done  at  all,  at  least  until  partition 
had  been  made  of  the  estate  among  the  children,  and  the 
land  through  which  the  aqueduct  passed  had  been  assigned 
to  another  than  the  minor.  No  grant  could  be  presumed 
from  adverse  enjoyment  against  such  minor,  since  no  grant 
could  be  presumed  against  a  person  who  was  incapacitated 
to  make  it.  "  It  would  be  absurd,"  say  the  court,  "  to 
presume  a  grant  where   it  was  clear  that  no   such   grant 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  1G7 

could  have  existed."  So  far,  therefore,  as  Buffum  was  con- 
cerned, it  was  held  that  he  had  not  gained  a  prescriptive 
right  to  use  the  aqueduct  to  his  estate.  But  inasmuch  as 
the  Bellows  estate  had  enjo3'ed  the  aqueduct  to  that  estate 
for  more  than  twenty  years  before  Cochrane's  death,  it  had 
acquired  the  same  as  an  easement.  And  as  to  the  claims 
of  Gage  and  Watkins,  it  was  held  that,  as  they  took  what 
water  they  used  from  the  Bellows  estate,  and  the  surplus 
only  of  what  flowed  to  that,  their  enjoyment  of  their  aque- 
ducts was  not  adverse  to  any  one  but  the  owner  of  that 
estate,  and  they  were  not  affected  by  the  minority  of  the 
heir  of  Cochrane  ;  and  having  enjoyed  the  use  of  their  aque- 
ducts for  more  than  twenty  years  by  the  acquiescence 
*of  the  owner  of  the  Bellows  estate,  they  had  ac-  [*122] 
quired  a  prescriptive  right  to  the  same.^ 

But  it  seems  to  be  settled  now,  as  already  stated,  that, 
even  if  the  prescription  might  be  suspended  during  the  mi- 
nority of  an  heir,  where  the  ancestor  dies  after  an  adverse 
enjoyment  has  begun,  if  enjoyed  after  such  heir  comes  of 
age,  the  two  periods  of  adverse  user  might  be  added  together 
to  make  the  requisite  period  of  prescription.^ 

77.  The  cases  above  cited,  as  well  as  the  express  lan- 
guage of  the  courts  in  several  cases,  are  directly  opposed 
to  the  doctrine  of  Story,  J.,  in  Tyler  v.  Wilkinson,  where 
he  says:  "By  our  law,  upon  principles  of  public  conven- 
ience, the  term  of  twenty  years  of  exclusive  uninterrupted 
enjoyment  has  been  held  a  conclusive  presumption  of  a  grant 
or  right.  I  say  of  a  grant  or  right,  for  I  very  much  doubt 
whether  the  principle  now  acted  upon,  however  in  its  origin 
it  may  have  been  confined  to  presumptions  of  a  grant,  is  now 
necessarily  limited  to  considerations  of  this  nature.  The 
presumption  is  applied  as  a  presumption  juris  de  Jure,  wher- 

1  Waikins  v.  Peck,  13  N.  H.  360-381. 

2  Melvin  v.  Whiting,  13  Pick.  184;  Lamb  v.  Crosland,  4  Rich.  536.  See 
Guernsey  v.  Kodbiidges,  Gilb.  Eq.  Cas.  3;  La.  Civ.  Code,  Art.  727.  See  Stat. 
2  &  3  Wm.  IV.  c.  71,  ^  7,  as  to  exceptions  in  case  of  disabilities  of  owners;  ante, 
pL  73. 


168  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cn.  I. 

ever,  by  possibility,  a  right  may  be  acquired  in  any  manner 
known  to  the  law.  Its  operation  has  never  yet  been  denied 
in  cases  where  personal  disabilities  of  particular  proprietors 
might  have  intervened,  —  such  as  infancy,  coverture,  and  in- 
sanity, —  and  where  by  the  ordinary  course  of  proceeding 
grants  would  not  be  presumed.  In  these,  and  like  cases, 
there  may  be  an  extinguishment  of  right  by  positive 
[*123]  limitations  of  time,  by  *estoppels,  by  statutable  com- 
pensations and  authorities,  by  election  of  other  bene- 
ficial bequests,  by  conflicting  equities,  and  by  other  means. 
The  presumption  would  be  just  as  operative,  as  to  these 
modes  of  extinguishment  of  a  common  right,  as  to  the  mode 
of  extinguishment  by  grant."  ^ 

In  Lamb  v.  Crosland,  the  court  insist,  as  already  stated, 
that  Story,  J.  did  not  make  the  proper  distinction  between  a 
prescription,  properly  so  called,  and  a  presumption  of  a  non- 
existing  grant,  the  latter  of  which  arises  after  an  enjoyment 
for  twenty  years,  the  former  goes  beyond  legal  memory.^ 
And  Putnam,  J.,  in  Sargent  v.  Ballard,  says :  "  We  cannot 
suppose  that  the  mere  use  of  the  easement  for  twenty  years 
is  conclusive  of  the  right,  nor  do  we  think  that  was  the  mean- 
ing of  Story,  J.,  in  Tyler  v.  Wilkinson.  He  could  not  have 
intended  an  enjoyment  which  had  been  by  favor,  and  at  the 
will  of  the  owner  for  twenty  years."  ^  And  in  Watkins  v. 
Peck,  the  Chief  Justice  says  :  "  It  would  be  absurd  to  pre- 
sume a  grant  where  it  was  clear  that  no  such  grant  could 
have  existed.""^ 

This  subject  has  already  been  treated  of,  and  was  only 
resumed  from  its  connection  with  the  doctrine  of  a  suspen- 

1  Tyler  v.  Wilkinson,  4  Mason,  402.  Sec  also  Mebane  v.  Patrick,  1  Jones, 
No.  C.  23. 

2  Lamb  v.  Crosland,  4  Eich.  536. 

3  Sargent  v.  Ballard,  9  Pick.  251.  Sec  also  3  Kent,  Comm.  444;  Colvin  v. 
Burnet,  17  Wend.  5G4 ;  Nichols  v.  Aylor,  7  Leigh,  546;  Yard  v.  Ford,  2  Wms. 
Saund.  175,  note;  Mayor  of  Hull  v.  Horner,  Cowp.  102;  Parker  v.  Poote,  19 
Wend.  .309,  315;  ante,  pi.  73. 

*  Watkins  v.  Peck,  13  N.  II.  377. 


Sect.  4.]  ACQUIRING   EASEMENTS   BY   PRESCRIPTION.  1G9 

sion  of  prescription,  under  certain  circumstances,  in  case  of 
a  personal  disability  of  the  owner  of  a  servient  estate. 

Nor  does  the  distinction  seem  to  be  of  sufficient  practical 
consequence  to  occupy  much  time  in  its  discussion.  But  it 
was  resumed  by  the  court  of  New  Hampsliire,  in  Wallace  v. 
Fletcher,  already  referred  to,^  where  it  is  said,  "  the  current 
of  English  authorities  has  gone  no  further  than  to  hold  that 
long-continued  and  uninterrupted  possession  is  evidence  from 
which  a  jury  may  presume  a  deed."  But  the  judge  (Bell) 
maintains  that,  by  the  American  law,  such  an  enjoyment  is 
something  more  than  a  presumption.  He  quotes  2  Greenl. 
Ev.  §  539,  and  the  authorities  there  cited,  as  well  as  sundry 
others,  and  concludes,  that  "  this  may  properly  be  regarded 
as  a  species  of  prescription  established  here  by  a  course  of 
judicial  decisions,  by  analogy  to  the  statute  of  limitations  of 
real  actions."  But  the  admission  he  makes  of  the  excep- 
tions there  must  be  to  this  as  a  positive  rule  of  pr(^cription, 
really  seems  to  leave  it  very  much  where  the  cases  of  Sar- 
gent V.  Ballard  and  Watkins  v.  Peck  had  done,  that,  in  order 
to  be  conclusive,  it  must  be  shown  affirmatively  to  have  all 
the  qualities  of  an  adverse  enjoyment;  1,  for  the  requisite 
time ;  2,  against  the  owner  of  the  estate  who  was  in  a  condi- 
tion to  grant  the  easement,  and  who,  3,  had  knowledge  of 
and  did  not  object  to  the  uses  by  which  the  right  was  ac- 
quired. 

1  Wallace  v.  Fletcher,  10  Foster,  446.  See  also  Hall  v.  M'Leod,  2  Mete.  Ky. 
98,  that  twenty  years'  enjoyment  is  only  evidence,  it  raises  a  presumption  but  not 
a  prescription. 


170  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Ca.  1. 

[*124]  *SECTION  V. 

OF   EASEMENTS   BY    PUBLIC   PRESCRIPTION   AND   DEDICATION. 

1.  Public  as  distinct  from  private  prescription. 

2.  Towns  and  corporations  may  prescribe  for  ways. 

3.  Towns  may  prescribe  for  pasturage. 

4.  Towns  may  prescribe  for  gates  in  highways. 

5.  Prescription  for  town  ways  and  public  liighways. 

6.  No  prescription  in  favor  of  "the  public,"  but  a  dedication. 

7.  Earned  v.  Earned.     Case  of  a  dedication  of  a  way. 

8.  Jennings  v.  Tisbury.     Case  of  a  highway  by  prescription. 

9.  Dedication  a  modern  doctrine  of  law. 

10.  Dedication  a  concurrent  act  of  land-owner  and  the  public. 

11.  No  one  can  dedicate  but  owner  of  the  fee  of  the  land. 

12.  Intention,  essential  to  a  dedication. 

13.  User  not  enough,  if  owner  intends  not  to  dedicate. 

14.  Dedication  may  be  for  special  purposes  only. 

15.  To  what  iises  lands,  &c.  may  be  dedicated. 

16.  In  dedication,  owner  does  not  part  with  the  fee. 

17.  Dedication  may  be  by  a  single  act. 

18.  Of  iand-owners'  interest  in  lands  dedicated  to  the  public. 

19.  Dedication  requires  no  deed  of  grant,  act  in  pais  sufficient. 

20.  Dedication  once  made  is  irrevocable. 

21.  As  to  time  requisite  to  create  a  dedication. 

22.  Dedication  inferred  from  sale  of  city  lots  with  plans  of  streets. 

23.  Clements  v.  West  Troy.     Way  appurtenant  to  lots,  though  not  dedicated. 

24.  Bowers  v.  Suffolk  Manufacturing  Company.     Same  subject. 

25.  Owner  of  soil  may  not  obstruct  a  dedicated  way. 

26.  Streets  may  be  dedicated  -before  open  or  wrought. 
26  a.  Dedication  by  laying  out  cities  and  villages. 

26  6.  What  acceptance  makes  dedications  effective. 

27.  Effect  of  failing  to  use  what  is  dedicated. 

28.  Owner  may  not  resume  lands  actually  dedicated. 

29.  Use  of  lands  to  conform  to  purposes  of  dedication. 

30.  No  dedication  of  streets  laid  on  plans,  unless  lots  are  sold. 

31.  In  some  States  there  is  no  dedication  of  public  ways. 

32.  Ways  may  be  dedicated,  if  publicly  used,  in  Connecticut. 

33.  Law  of  Massachusetts  as  to  dedicating  pubhc  ways. 

34.  Common  law  prevails  as  to  squares,  &c. 

35.  Public  cannot  insist  on  dedication  against  wish  of  owner. 

36.  Case  of  a  way  opened  for  owner's  convenience. 

37.  Gowen  v.  Philadelphia  Exchange  Company.     Open  land  not  dedicated. 

38.  New  Orleans  v.  United  States.     Wiiat  passes  under  a  dedication. 

39.  State  v.  Trask.     Case  of  dedication  of  a  public  square. 

40.  Abbott  V.  Mills.    Dedication  inferred  from  mode  of  building. 

41.  Hunter  v.  Trustees,  &c.     General  subject  of  dedicating  lands. 

42.  Who  has  charge  of  dedicated  lands. 

43.  Individual  may  prescribe  against  a  dedicated  right. 


Sect.  5.]  EASEMENTS  BY   DEDICATION.  171 

*1.  It  has  already  been  stated,  that  public  corpo-  [*125] 
rate  bodies,  like  the  inhabitants  of  towns,  may  acquire 
rights  in  the  nature  of  easements,  by  continued  corporate 
acts  of  enjoyment,  amounting  to  a  prescription.  The  sub- 
ject is  in  some  respects  so  far  distinct  from  mere  private  pre- 
scriptions, that  it  has  been  reserved  for  a  place  by  itself, 
to  be  followed  by  that  of  rights  acquired  by  dedication, 
though,  as  will  appear,  these  differ  in  many  essential  par- 
ticulars. 

But  the  effect  in  the  matter  of  ways,  which  is  given,  in 
many  cases,  to  a  user,  in  establishing  a  public  way  and  a 
dedication  of  a  way  to  public  use,  are  so  nearly  identical, 
that  they  can  hardly  be  treated  of  separately.  A  way, 
however,  which  is  gained  by  a  corporate  body  by  prescrip- 
tion, properly  so  called,  is  limited  to  the  use  of  those  con- 
stituting that  body.  It  is  strictly  a  private  easement,  and 
does  not  come  within  the  category  of  public  ways. 

2.  In  a  dissenting  opinion,  in  Commonwealth  v.  Newbury, 
Putnam,  J.  says :  "  I  am  of  opinion  that  the  inhabitants  of 
a  town  may  prescribe  for  a  way,  as  well  as  individuals."  ^ 
He  cites  a  remark,  "  that  the  prescription  may  be  that  the 
usage  of  the  vill  D.  has  been  time  out  of  mind  that  the  in- 
habitants, (fee,  have  had  a  way  over  the  land  of  the  plaintiff 
to  the  church,  (fee,  and  that  the  inhabitants  may  prescribe 
for  an  easement."  ^ 

In  Commonwealth  v.  Low,  the  court  say  :  "  There  is  no 
doubt  that  the  inhabitants  of  a  town,  in  their  corporate 
capacity,  are  capable  of  taking  an  easement  or  other  incor- 
poreal hereditament,  and  that  they  may  become  seized  of  a 
right  of  way  by  grant,  prescription,  or  reservation.  A  grant, 
also,  may  be  presumed  from  continued  occupation,  as  well  in 

favor  of  a  corporation  as  of  an  individual If  a  grant  of 

the  way  be  presumed,  it  will  not  support  the  indictment.     It 
will  operate  in  favor  of  the  town  only,  and  will  give  no  right 

1  Commonwealth  i'.  Newbury,  2  Pick.  51. 

2  17  Viner,  Abr.  25G  ;  Nudd  v.  Hobbs,  17  N.  H.  525, 


172      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

[*126]   of  passage  to  any  but  the  inhabitants.    It  *will  be 

technically  a   private   way,  and  any   person   other 

than  an  inhabitant  passing  upon  it  will  be  a  trespasser."  i 

3.  So  in  New  York,  the  court  held  that  the  inhabitants 
of  a  town  might  gain  a  right  of  easement  of  pasturage  by 
prescription  or  grant,  and  that,  consequently,  any  inhaljitant 
of  the  town  might  turn  his  sheep  upon  the  land  without 
thereby  being  a  trespasser.^ 

4.  So  it  was  held  that  the  inhabitants  of  a  town  might 
prescribe  for  a  right  to  maintain  a  gate  across  a  highway, 
when  the  same  was  necessary  to  preserve  the  grass  in  the 
close  through  which  it  leads.^ 

5.  The  language,  however,  of  the  courts  in  many  cases 
would  lead  one  to  infer  that  ways  for  public  use,  whether 
town  ways  or  public  highways,  might  be  established  by  pre- 
scription. Thus  in  Stedman  v.  Southbridge  it  is  said :  "  It 
has  been  argued  as  if  the  question  was,  whether  a  town  way, 
under  any  circumstances,  can  be  proved  by  prescription  or 
by  presumption,  arising  from  use  and  enjoyment.  It  is,  per- 
haps, too  much  to  say  that  such  a  way,  or  any  other  kind  of 
easement  cannot  be  thus  proved,  but  it  would  be  manifestly 
difficult,  because,  in  general,  the  facts  which  would  tend  to 
prove  the  existence  of  such  a  way  would  prove  the  larger 
easement  of  a  public  highway."  * 

The  use  of  a  way  by  the  public  for  twenty  years  gives  a 
prescriptive  right  of  a  public  as  well  as  a  similar  user  does  of 
a  private  way,  and  this  right,  when  once  established,  con- 
tinues until  it  is  clearly  and  unmistakably  abandoned.  A 
transient  or  partial  non-user  will  not  work  an  abandonment. 
It  must  be  total,  and  of  sufficient  length  of  time.^ 

But  to  establish  a  public  way  by  prescription,  there  mvist 

1  Commonwealth  v.  Low,  3  Pick.  408;  Smith  v.  Kinard,  2  Hill,  So.  C.  642; 
Green  v.  Chelsea,  24  Pick.  71  ;  Avery  v.  Stewart,  1  Cush.  496. 
'^  Ptose  V.  Bunn,  21  N.  Y.  275. 
'^  Spear  v.  Eicknell,  5  Mass.  124. 

*  Stedman  v.  Southbridge,  17  Pick,  162;  post,  p.  *142. 
t*  Lcwiston  V.  Proctor,  27  111.  417. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  173 

have  been  a  user  for  twenty  years  in  substantially  the  same 
line  and  direction,  and  if  a  line  once  used  is  abandoned,  and 
another  adopted  changing,  in  fact,  the  thread  of  the  road, 
and  it  remains  so  for  eight  or  nine  years,  it  is  not  such  a 
continuous  use  as  to  establish  a  presumptive  right. ^ 

So  in  Avery  v.  Stewart,  it  is  said  :  "  It  may  be  difficult  to 
decide  whether  the  long  user  of  a  way  by  the  inhabitants  of 
a  town,  and  by  others,  would  authorize  the  presumption  of 
its  being  a  public  highway  or  a  town-way."  ^ 

Now,  in  all  these  cases,  it  is  apprehended  tbe  court  in- 
tended to  speak  of  a  way  open  for  the  use  of  all  persons  in- 
discriminately, whether  known  and  called  a  town  or 
a  *public  way  or  road,^  and  not  a  mere  private  way,   [*127]  . 
belonging  only  to  the  inhabitants  of  a  town. 

The  court  say,  in  Commonwealth  v.  Low :  "  AVays  of  vari- 
ous kinds  may  be  proved,  not  only  by  prescription,  but  by  a 
continued  and  uninterrupted  use  of  them  for  a  period  much 
within  the  memory  of  man.  And  it  cannot  be  doubted  that 
public  highways  may  be  shown  by  evidence  of  a  user,  as  well 
as  by  the  record  of  their  laying  out."  ^ 

And  parol  evidence  of  the  existence  and  user  of  an  ancient 
highway  is  admissible  to  establish  it  as  such.'^ 

So  in  Folger  v.  Worth,  it  is  said :  "  It  is  now,  we  think, 
too  late  to  contend  that  the  existence  of  a  highway  cannot 
be  proved  by  immemorial  usage."  ^ 

6.  From  what  has  heretofore  been  said  of  the  distinction 
between  prescription,  — where  there  is  assumed  to  have  been 
a  grant,  with  a  grantor  and  grantee,  —  and  a  custom,  — 
where,  from  the  nature  of  the  case,  if  there  is  a  grant  and  a 

1  Gentleman  v.  Soule,  32  III.  278. 

2  Avery  v-  Stewart,  1  Cush.  496. 

3  Craigie  v.  McUen,  6  Mass.  7  ;  Commonwealth  r.  Low,  3  Pick.  408;  Valen- 
tine V.  Boston,  22  Pick.  75.     See  Nash  v.  Peden,  1  Speers,  17. 

*  Commonwealth  v.  Low,  3  Pick.  412. 

6  Green  v.  Canaan,  29  Conn.  167. 

6  Folger  V.  Worth,  19  Pick.  108.  See  also  "Williams  v.  Cummington,  18  Pick. 
312  ;  State  v.  Hunter,  5  Ired.  369 ;  State  v.  Marble,  4  Ired.  318  ;  Nash  v.  Peden, 
1  Speers,  17. 


174  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cii.  I. 

grantor,  there  is  no  grantee,  the  persons  who  were  to  enjoy 
under  it  being  incapable  of  taking  in  their  collective  capac- 
ity, —  there  could,  obviously,  be  no  prescription,  prop- 
erly speaking,  for  a  right  in  the  public  to  use  a  way,  for  the 
reason  that  there  is  no  grantee  in  the  assumed  grant.  It 
comes  under  the  category  of  dedications,  and  the  court,  in 
Valentine  v.  Boston,  remark:  "  When  those  decisions  [Com- 
monwealth V.  Newbury  and  Commonwealth  v.  Low]  were 
made,  the  doctrine  of  dedication  had  not  been  recognized  as 
the  law  of  this  State."  ^ 

In  the  last  case,  the  plaintiff,  and  those  under  whom  he 
claimed,  had  suffered  a  small  piece  of  ground  in  front  of  his 
store  to  be  used  as  a  part  of  the  street  for  a  great 
[*128]  length  of  *time,  and  it  was  held  that  the  public  had 
acquired  an  easement  to  use  the  same  as  a  way. 
And  where  a  man  had  opened  a  way  across  his  land,  which 
has  been  used  as  a  highway  for  the  term  of  twenty  years, 
it  was  held  that  it  might  be  treated  as  a  public  way,  and  one 
which  he  could  not  close.  But  if  the  user  had  been  for  a 
shorter  period,  the  land-owner  might  close  it.^  "  Whether 
it  may  have  been  acquired  by  grant  or  dedication,  or  the  pre- 
sumption of  a  laying  out,  and  whether  it  may  be  viewed  as  a 
private  way  for  the  town,  or  as  a  highway  for  the  public, 
seem  to  us  to  be  useless  speculations." 

This  may  be  true  in  settling  the  question  of  damages  then 
before  the  court.  But,  in  its  bearing  upon  other  cases,  it 
may  not  bo  so  unimportant  to  fix  whether  the  right  claimed 
was  gained  by  prescription  or  dedication,  in  respect  to  which 
such  different  rules  will  be  found  to  prevail.  To  authorize  a 
dedication  does  not  require  the  existence  of  a  corporation  to 
whom  it  is  made,  or  in  whom  the  title  should  vest.  It  may 
be  valid  without  any  specific  grantee  in  esse  at  the  time,  to 
whom  the  fee  could  be  granted.  And  in  this  respect  it  forms 
an  exception  to  the  general  rule  of  transferring  or  creating 

1  Valentine  i'.  Boston,  22  Pick.  75. 

2  Estes  V.  Troy,  5  Maine,  3G8.    But  see  State  v.  M'Danicl,  8  Jones,  L.  284. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  175 

an  interest  in  lands,  as  it  may  be  done  without  a  deed,  and 
without  any  person  competent  to  accept  the  grant  as  gran- 
tee.i  The  public  is  an  ever-existing  grantee,  capable  of  tak- 
ing a  dedication  for  public  uses.^ 

7.  The  court  also  recognize  the  distinction  above  referred 
to,  between  a  prescription  and  a  dedication,  as  applicable  to 
ways  for  public  use,  in  the  case  of  Larned  v.  Larned,''  where 
tliere  had  been  a  way  which  the  public  had  used  for  forty 
years,  across  certain  lots  of  land  between  certain  termini. 
The  way  across  the  plaintiff's  close  had  been  changed,  eight 
years  previous  to  the  action,  by  his  consent  and  tliat  of  the 
defendant,  who  was  the  plaintiff's  grantor,  and  of  the  other 
owners  of  the  parcels  over  which  the  way  passed,  the  termini 
remaining  the  same.  The  court  held  this  to  be  a 
*dedication  of  the  new  way.  They  say  a  way  may  [*129] 
be  established  by  dedication  of  the  owner  of  the  soil, 
with  the  assent  of  those  who  are  interested  in  tlie  way. 
"  And  this,"  they  add,  "  is  true,  not  only  of  a  highway,  but 
of  a  town-way,  or  a  private  way."  By  "  private  way,"  as 
here  used,  must  obviously  have  been  intended  that  class  of 
ways  known  to  the  law  of  Massachusetts,  which  are  laid  out 
by  public  authority  under  that  name,  and  are  open  to  the  use 
of  the  public,  though  designed  for  the  accommodation  of  the 
proprietors  of  particular  estates  ;  for  the  court  say,  "  Length 
of  use  is  not  a  necessary  clement,  without  which  a  dedica- 
tion cannot  be  proved."  And  there  was  nothing  in  the  case 
which  called  for  an  overthrow  of  all  preconceived  and  well- 
settled  rules  in  relation  to  a  grant  or  prescription  being  ne- 
cessary to  gain  an  easement  of  a  private  way.  Besides,  in 
Commonwealth  v.  Newbury,^  the  court  say :  "  We  do  not  see 

1  Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill,  407  ;  3  Kent,  Comm.  450  and  note ; 
Abbott  V.  Mills,  3  Vt.  521 ;  State  v.  Wilkinson,  2  Vt.  480 ;  Cincinnati  v.  White, 
6  Pet.  432  ;  Tawlet  v.  Clark,  9  Cranch,  292,  331 ;  Kennedy  v.  Jones,  II  Ala.  63  ; 
Brown  v.  Manning,  6  Ohio,  298. 

2  Warren  v.  Jacksonville,  15  HI.  236. 

3  Larned  v.  Larned,  11  IMetc.  421.     See  Lawton  v.  Tison,  12  Rich.  88. 

*  Commonwealth  v.  Newbury,  2  Pick.  57.     See  Dawes  v.  Hawkins,  8  C.  B., 


176  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

how  the  principle  of  dedication  to  the  public  can  be  applied 
to  a  private  way,  for  the  very  evidence  which  would  tend  to 
show  a  dedication  would  disprove  it  as  a  private  way." 

A  dedication  is  properly  only  to  the  public  use ;  there  can 
be  no  dedication,  properly  speaking,  to  private  uses.  A 
private  pass-way  cannot  be  created  by  dedication. ^ 

Although  the  authority  cited  directly  sustains  the  state- 
ment here  made,  it  is  apprehended  that  though  there  may 
not  be  technically  a  dedication  of  a  way  to  private  uses, 
there  are  many  cases  where,  from  acts  like  those  of  a  dedica- 
tion to  a  public  use,  rights  are  secured  to  individuals  for 
their  private  benefit.  Thus  in  laying  out  streets,  alleys,  &c., 
by  the  owner  of  land,  who  sells  lots  bounding  upon  them,  it 
does  not  constitute  them  public  streets  until  the  public  shall 
have,  in  some  way,  accepted  and  adopted  them  as  such,  and 
yet  the  proprietors  of  those  lands  have  a  right  to  the  use  of 
those  streets  beyond  their  being  ways  or  easements  by  neces- 
sity. Thus,  in  Bissell  v.  N.  Y.  Central  R,  R.,  one  M.  opened 
a  new  street  over  his  own  land,  and  sold  lots  upon  it.  And 
the  court  say,  "  his  grantees  acquired  the  right  to  have  the 
strip  remain  open  for  the  purpose  of  a  street."  "  By  the 
sale  of  the  lots,  nothing  passed  to  the  several  grantees  but 
this  right  and  a  perpetual  easement  over  this  ground  of 
egress  to  and  from  their  lots."^ 

This  must  obviously  be  so,  if,  as  is  laid  down  in  Holdane 
V.  Trustees,  <fec.,^  a  way,  in  order  to  become  a  public  highway 
by  dedication,  must  be  a  thoroughfare,  and,  if  a  cul  de  sac, 
it  could  not  be. 

The  language,  however,  of  the  court  of  Massachusetts  up- 
on this  point  is  in  a  hypothetical  form :  "  If  a  private  way 
can  be  established  between  the  parties  by  dedication,  it  must 

N.  s.  848 ;  Pope  v.  Dcvercux,  5  Gray,  409,  where  the  court  seem  to  assume  that 
"  private  way  "  in  the  ahove  case  was  a  private  way  at  common  law.  See  also 
Lawton  t;.  Tison,  12  Eich.  88. 

1  Hale  V.  M'Leod,  2  Mete.  Ky.  98 ;  post,  pp.  *13.3,  *141. 

2  20  Barb.  633.     See  Clements  v.  W.  Troy,  16  Barb.  251.     See  pos/,  p.  *138 
8  23  Barb.  103. 


Sect.  5.]  EASEMENTS    BY   DEDICATION.  177 

appear  to  have  been  done  with  a  full  knowledge  of  the  rights 
of  the  parties,  thus  indicating  a  clear  intent  by  the  party 
owning  land  to  devote  his  land  to  such  purpose,  so  as  to 
give  to  others  an  irrevocable  right  to  use  it."  ^ 

8.  The  effect  upon  the  public  in  the  matter  of  right  is  so 
nearly  identical,  whether  the  way  has  become  a  public  one 
by  prescription  or  dedication,  that  the  line  of  distinction 
between  the  two,  as  modes  of  acquiring  it,  is  often  over- 
looked. The  case  of  Jennings  v.  Tisbury  may  be  cited  as 
recognizing,  if  it  does  not  fully  explain,  the  distinction. 
That  was  the  case  of  a  narrow  lane  in  Tisbury  through  open, 
unenclosed  lands,  which  had  been  used  as  a  road  by  the 
public  more  than  twenty  years,  and  was  determined 
irrespective  of  *any  statute  now  in  force  in  Massa-  [*130] 
chusetts  on  the  subject  of  dedication.  There  was  no 
record  in  this  case  of  a  laying  out  of  the  road,  and  the 
plaintiff  placed  his  claim  that  it  was  a  public  highway  upon 
a  dedication,  because  the  town  had  not,  under  a  statute 
authorizing  them  to  give  notice,  disavowed  it  as  a  public 
way.  But  the  court  treat  of  it  as  not  being  affected  by  that 
statute.  "  This  leaves  untouched  the  case  of  public  ways  by 
prescription,  and  perhaps  it  would  not  be  too  much  to  say, 
that  a  large  proportion  of  the  public  ways,  whether  they  be 
considered  public  highways  or  town-ways,  stand  upon  no 
other  title  but  prescription.  No  doubt,  in  the  early  settle- 
ment of  the  country,  when  lands  were  commonly  granted  to 
a  company  of  proprietors,  public  ways  were  reserved  when 
the  lands  were  surveyed  and  allotted,  which  have  remained 
open  and  public  ways  to  the  present  time,  of  which  there  is 
no  record.  That  these  are  in  all  respects  highways,  is  a  point 
too  well  established  to  require  authorities.  To  establish  such 
a  way,  where  there  is  no  proof  of  dedication,  and  where  the 
element  of  dedication  does  not  subsist,  it  will  be  necessary 
to  prove  actual  public  use,  general,  uninterrupted,  continued 

1  Atwater  v.  Bodfisli,  11  Gray,  152  ;  post,  p.  *142.   For  the  distiuction  between 
a  way  by  dedication  and  one  by  license,  see  post,  p.  *133. 
12 


178  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

for  a  certain  length  of  time.  In  general,  it  must  be  such  as 
to  warrant  a  presumption  of  laying  out,  dedication,  or  appro- 
priation by  parties  having  authority  so  to  lay  out,  or  a  right 
so  to  appropriate,  lilce  that  of  prescription  or  non-appearing 
grant  in  case  of  individuals.  It  stands  upon  the  same  legal 
grounds,  a  presumption  that  whatever  was  necessary  to  give 
the  act  legal  effect  and  operation  was  rightly  done,  though 
no  other  evidence  of  it  can  now  be  produced  except  the 
actual  enjoyment  of  the  benefit  conferred  by  it."  And  upon 
the  question  of  length  of  enjoyment  requisite  to  raise  the 
legal  presumption  of  its  being  a  public  highway,  the  judge 
says  :  "  It  is  put  upon  the  ordinary  ground  of  prescription 
and  presumption  of  a  non-appearing  grant  or  record,  Avliich 
we  now  consider  as  fixed  at  twenty  years.  If  such  evidence 
of  the  existence  of  a  highway  is  proved,  tlie  court 
[*lol]  are  of  *opinion  that  it  will  be  sufficient,  independ- 
ently of  any  such  supposed  dedication."  ^ 

Whether  the  foregoing  opinion  is  open  to  criticism  or  not, 
in  failing  to  define  what  would  be  a  dedication,  so  far  as  it 
goes  to  establish  the  doctrine  that  there  may  be  a  public  high- 
way whose  existence  may  be  proved  by  prescription,  indepen- 
dent of  any  evidence  of  an  original  dedication,  the  same  is 
reaffirmed  by  the  court  in  the  above-cited  case  of  Durgin  v. 
City  of  Lowell. 

9.  Tlie  whole  doctrine  of  dedication  of  easements  to  the 
public  use  seems  to  be  of  comparatively  modern  date.  Tims 
it  is  stated  by  Gibson,  C.  J.,  in  Gowcn  v.  Pliiladelpliia  Ex- 
change Co., 2  that  the  doctrine  of  dedication  to  the  public, 
without  the  intervention  of  trustees,  began  in  1732,  Rex  v. 
Hudson,^  and  was  next  applied  in  Lade  v.  Shepherd,*  in 
1735.  It  then  slept  until  1790,  in  the  case  of  Rugby  v. 
Merriweather.5 

1  Jeniiinf,'S  v.  Tisbury,  5  Gray,  73.     See  Williams  v.  Cummington,  18  Pick. 
312  ;  Durgin  v.  City  of  Lowell,  3  Allen,  398  ;  Valentine  v.  Boston,  22  Tick.  75. 

2  Gowcn  V.  Phila.  Exchange  Co.,  5  Watts  &  S.  141. 
8  Rex  V.  Hudson,  2  Strange,  909. 

*  Lade  v.  Shepherd,  2  Strange,  1004. 

&  llugljy  Ciiarity  i;.  Merrywcather,  11  East,  375. 


Sect.  5.]  EASEMENTS    BY    DEDICATION.  179 

In  Wisconsin,  it  is  declared  to  be  a  part  of  the  common 
law  of  that  State.     So  in  Tennessee.^ 

In  Hinckley  v.  Hastings,  the  court  of  Massachusetts  doubt 
if  the  doctrine  of  dedication  had  ever  been  adopted  in  this 
Commonwealth.     This  was  as  late  as  1824.^ 

But  in  Ilobbs  v.  Lowell,  the  court,  with  one  dissenting 
opinion,  held  that  a  highway  could  be  established  here  by 
dedication.     This  was  in  1837.^ 

The  doctrine  had  gained  currency  slowly,  for  in  the  year 
before  that,  the  same  court,  speaking  of  dedication, 
say :  *"  The  doctrine  of  dedication,  if  it  be  adopted  in   [*132] 
this  State,"  &c^ 

The  matter  had  been  fully  considered  in  the  case  of  Cin- 
cinnati V.  Wliite,^  in  the  Supreme  Court  of  the  United 
States,  and  settled  in  1832,  which  was  a  case  of  dedication  of 
an  open  square  in  a  city ;  and  this  had  been  preceded  by  the 
case  of  Pomeroy  v.  Mills,  in  1830,  in  Vermont.^ 

It  may  now  be  assumed  to  be  a  settled  doctrine,  at  com- 
mon law,  in  this  country  generally.  It  can  best  be  stated 
and  illustrated  by  a  reference  to  some  of  the  cases  which 
have  occurred,  with  the  langviage  of  the  courts  in  respect  to 
the  same.'^ 

10.  Although  the  idea  of  dedication  implies  an  appropria- 
tion of  property,  by  the  act  of  the  owner,  for  the  use  and 
benefit  of  others,  without  any  formal  and  specific  contract 
between  them,  like  the  making  and  receiving  of  a  grant  by 
deed  or  otherwise,  yet  to  a  complete  dedication  there  is  as- 
sumed to  be  an  acceptance  of  the  offered  benefit  by  those  for 
whom  it  was  intended.     In  the  language  of  the  court,  in 

1  Gardiner  v.  Tisdale,  2  Wise.  153;  Connelian  v.  Eord,  9  Wise.  240;  Scott  v. 
State,  1  Sneed.  632. 

2  Hinckley,  v.  Hastings,  2  Pick.  162. 

3  Hobbs  V.  Lowell,  19  Pick.  405. 
*  Green  i'.  Chelsea,  24  Pick.  71. 

5  Cincinnati  v.  White,  6  Pet.  431. 

6  Pomeroy  v.  Mills,  3  Vt.  279. 

"!  Pearsall  v.  Post,  20  AVend.  115,  per  Cowen,  J.,  and  cases  cited.  See  post, 
chap.  3,  sect.  9,  pi.  17. 


180  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

Green  v.  Chelsea,  "  Dedication  must  originate  in  the  volun- 
tary donation  of  the  owner  of  the  land,  and  be  completed  by 
the  acceptance  of  tlie  public."  ^ 

Nor  can  one  of  two  or  more  tenants  in  common  dedicate 
the  common  lands  belonging  to  himself  and  his  cotenants.^ 

11.  And  in  respect  to  who  may  dedicate  lands  to  public 
uses,  the  rule  seems  to  be  the  same  as  in  making  grants  of 
any  kind.  Thus  the  land  of  a  married  woman  may  be  dedi- 
cated where  the  acts  of  herself  and  husband  arc  such  as  to 
indicate  an  intention  to  do  so.  But  it  can  only  be  done  by 
one  having  the  fee  in  the  land.^  It  cannot  be  done  by  a  tres- 
passer or  a  tenant.^ 

12.  To  constitute  a  dedication  of  land  to  a  public 
[*133]  use,  *there  must  first  be  an  intention  to  do  it  on  the 
part  of  the  owner.  And  this  must  be  unequivocally 
and  satisfactorily  proved.  But  it  may  be  manifested  by  writ- 
ing, by  declaration,  or  by  acts.^  Dedications  have  been  estab- 
lished in  every  conceivable  way  by  which  the  intention  of 
the  party  could  be  manifested. ^  Without  that,  no  dedica- 
tion can  take  place,  and  if,  for  instance,  in  opening  a  passage- 
way of  a  character  which  might  otherwise  be  deemed  a  pub- 
lic way,  the  owner  of  the  land  should  place  a  gate  at  its  en- 
trance, by  which  such  passage  may  be  closed,  it  would  be 
regarded  as  evidence  negativing  the  intention  to  make  it  a 
public  way.  Nor  would  it  become  so  by  the  gate  being  suf- 
fered to  go  to  decay,  or  ceasing  to  be  used.  It  was  accord- 
ingly held,  in  Commonwealth  v.  Newbury,"  that  there  must 
be  a  manifest  intention  to  accommodate  the  public  through  a 
man's  land,  before  he  shall  bo  held,  by  implication,  to  have 

1  Green  v.  Chelsea,  24  Pick.  71 ;  Cliild  v.  Chappell,  5  Seld.  256. 

'■^  Scott  V.  State,  1  Sneed.  629. 

8  Sehenley  v.  Commonwealth,  &c.,  .36  Penn.  St.  29;  Ward  v.  Davis,  3  Sandf. 
502. 

*  Gentleman  v.  Soulc,  32  III.  279;  State  v.  Atherton,  16  N.  H.  208. 

^  Gentleman  v.  Soulc,  32  111.  280 ;  Godfrey  v.  Alton,  12  111.  29  ;  Scott  v.  State 
1  Sneed.  6.33. 

6  Wannh  V.  Leech,  28  111.  492. 

■^  Commonwealth  v.  Newbury,  2  Pick.  51. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  181 

given  it,  so  that  even  when,  at  tlie  first  opening  of  such  way, 
a  post  only  had  been  put  up,  which  soon  after  was  knocked 
down,  and  remained  down  for  twelve  years,  and  the  passage 
had  been  uninterrupted  all  that  time,  it  was  determined  that 
the  owner  might  maintain  trespass  against  those  who  used 
the  way  ;  and  the  court  cite,  as  sustaining  that  doctrine, 
Roberts  v.  Karr.^ 

The  doctrine  that  the  erection  of  a  post  or  a  gate  at  the 
entrance  of  a  passage-way,  or  similar  acts,  may  negative  the 
intention  of  the  owner  to  dedicate  it,  and  thereby  prevent  it 
becoming  a  highway,  is  undoubtedly  well  sustained,  both  in 
England  and  this  country .^  But  the  modern  authorities,  it 
is  believed,  instead  of  holding  one  a  trespasser  who  should 
pass  over  a  way  in  a  city  apparently  open  for  use,  would 
hold  that  the  very  opening  of  the  way  would  be  a  license  to 
the  public  to  use  it,  if  it  had  the  ordinary  indicia  of  being 
intended  for  public  convenience.  It  would  otherwise  serve 
as  a  trap  to  innocent  passengers.^ 

If  the  owner  of  land  open  a  way  across  it,  having  the 
ordinary  indicia  of  an  open  way  for  the  public,  he  would  be 
considered  as  licensing  its  use  so  long  as  he  keeps  it  open, 
although  he  may,  by  posts,  gates,  or  public  notice  at  its 
entrance,  negative  the  dedication  of  it  as  a  public  way.  Nor 
would  one  be  liable  in  trespass  for  travelling  over  it  while  in 
this  state.  Nor  would  the  city  or  town  be  liable  to  any  one 
passing  over  it  who  should  sustain  damage  by  reason  of  its 
being  defective  or  unsafe  for  travel.  Nor  would  it  make  any 
difference  that  the  way  is  a  cul  de  sac,  open  at  only  one  end. 
The  measure  of  the  implied  license  is  fixed  by  the  apparent 
use  for  which  it  is  proposed  and  used.     The  traveller  has  no 

1  Roberts  v.  Karr,  1  Campb.  262,  note.  See  also  Woolr.  Ways,  12;  Leth- 
bridge  v.  Winter,  1  Campb.  263,  note. 

2  Ilu^by  Charity  v.  Merryweatlier,  11  East,  376,  note;  Carpenter  v.  Gwinn, 
35  Barb.  39.5,  406 ;  Proctor  v.  Lewiston,  25  111.  153;  2  Smith,  Lead.  Cas.,  5th 
Am.  ed.,  203. 

3  Stafford  v.  Coyney,  7  Barnew.  &  C.  257  ;  Bowers  v.  Suffolk  Mg.  Co.,  4  Cash. 
332;  Morse  v.  Stocker,  1  Allen,  154;  Commonwealth  v.  Fisk,  8  Mete.  238; 
Cleveland  c.  Cleveland,  12  Wend.  172. 


182  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

occasion  to  inquire  whether  the  way  is  a  pul)lic  or  private 
one,  so  far  as  it  is  a  question  of  license.^ 

The  owner  of  the  land  would  be  estopped  to  deny  that  it 
was  a  highway  if  opened  and  used  as  such,  though  never 
accepted  by  the  public.^ 

So  where  a  manufacturing  company  opened  a  street  on 
their  own  premises,  and  built  houses  upon  each  side,  and 
wrought  the  way  as  a  street,  and  the  houses  were  occupied 
by  the  operatives  employed  in  their  works,  but  it  had  not 
been  their  intention  to  dedicate  it  as  public  way,  and  they 
had  posted  up  at  the  opening  of  tlie  street,  "  Private  way," 
it  was  held  to  be  such  only,  and  the  city  was  not  responsible 
to  a  person  who,  in  passing  through  it,  sustained  injury.'^ 

And  where  the  owners  of  two  adjoining  estates  in  a  city, 
left  an  open  space  between  their  houses  leading  from  the 
street  to  the  rear  of  their  lots,  and  suffered  the  public  to 
pass  over  the  same  for  thirty  or  more  years,  but  the  way  had 
never  been  laid  down  upon  any  plot  of  the  town  or  city,  nor 
recognized  as  such  by  the  municipal  officers,  and  there  was 
no  evidence  of  an  actual  dedication  of  it  having  been  made, 
it  was  held  that  one  of  the  owners  might  enclose  his  part  of 
the  land,  although  the  other  had  erected  a  building  fronting 
upon  this  passage-way.  Nor  could  any  one,  by  merely 
passing  over  this  way,  have  acquired  a  prescriptive  right  to 

use  it  as  a  way.^ 
[*134]  *The  acts  and  declarations  of  the  land-owner,  indi- 
cating the  intent  to  dedicate  his  land  to  the  public 
use,  must  be  unmistakable  in  their  purpose  and  decisive  in 
their  cliaracter  to  have  that  effect.  In  one  case,  a  land- 
owner in  the  village  of  Newburgh,  laid  out  a  strip  of  land  of 
the  ordinary  width  of  a  street,  from  one  public  street  to 
another,  and  wrought  it,  at  the  expense  of  several  thousand 
dollars,  into  the  condition  of  a  street  fit  for  public  use. 

1  Danforth  v.  Durcll,  8  Allen,  244. 

2  Greene  v.  Cuiiaiin,  29  Conn.  172. 

3  I)nij,Mn  V.  Lowell,  .T  Allen,  .398. 

*  Crcssniau  v.  Vignaud,  14  Louis,  176. 


Sect.  5]  EASEMENTS   BY   DEDICATION.  183 

When  he  began  to  work  it,  he  had  gates  at  each  end. 
He  took  down  one  as  ho  progressed,  and  in  the  end  he 
'removed  the  other  ;  and  while  he  was  working  it,  people  on 
foot  and  some  in  vehicles  passed  over  it.  After  it  was  com- 
pleted he  replaced  one  of  his  gates.  A  citizen  of  the  town 
insisted  upon  passing  over  it,  on  the  ground  that  it  was  a 
dedicated  way.  The  court  held  it  was  a  question  of  intention 
on  the  owner's  part.  "  The  plaintiff  must  be  shown,  in  the 
present  case,  to  have  declared  by  words  or  by  actions,  or 
both,  his  irrevocable  intention  to  make  this  strip  of  land, 
forthwith,  not  merely  a  road,  or  a  way  of  passage,  but  a 
public  way."  The  taking  down  the  gates  here  was  account- 
ed for  by  its  being  necessary  in  constructing  the  way.  It 
was  held  not  to  be  a  dedicated  highway .^ 

A  similar  doctrine  was  held  in  Proctor  v.  Lewiston,  where 
a  party  fenced  out  a  strip  of  land  which  the  public  used  for 
a  way.  Whether  it  was  a  public  way  depended  upon  the 
intention  with  which  this  was  done  on  his  part.  If  once 
dedicated,  it  could  not  be  retracted.  But  his  acts  and 
declarations  at  the  time  of  making  the  road  might  be^ shown 
to  negative  such  intention. ^  And  the  question  of  dedication 
is  always  one  of  mixed  fact  and  law.'^ 

And  in  Poole  v.  Huskinson,  it  was  held  that  the  user  of  a 
way  by  the  public  is,  at  best,  only  evidence  of  intention  on 
the  part  of  the  owner  of  the  land  to  dedicate  it,  and 
that  *a  single  act  of  interruption  by  the  owner  is  of  [*135] 
much  more  weight  upon  the  question  of  intention, 
than  many  acts  of  enjoyment  on  the  part  of  the  public  ;  the 
use,  without  the  intention  to  dedicate  it  as  a  public  way,  not 
being  a  dedication.^ 

1  Carpenter  v.  Gwynn,  35  Barb.  395,  -406. 

2  Proctor  V.  Lewiston,  25  111.  153.  See  Bowers  v.  Suffolk  Mg.  Co,  4  Cush. 
332. 

3  Cowles  V.  Gray,  14  Iowa,  8. 

*  Poole  ».  Huskinson,  11  Mees.  &  W.  827  ;  Barraclough  v.  Johnson,  8  Adolph. 
&  E.  99  ;  Stafford  v.  Coyney,  7  Barncw.  &  C.  257  ;  Stacey  v.  Miller,  14  Mo.  478, 
no  dedication,  though  used  for  fifteen  years ;  Dwinel  v.  Barnard,  23  Me.  554  ; 
Skeen  r.  Lynch,  1  Robins,  Va.  186. 


184  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Ch.  I. 

But  "  it  is  every  day's  practice  to  presume  a  dedication  of 
land  to  the  public  use,  from  an  acquiescence  of  the  owner  in 
such  use."  1  And  the  doctrine  is  well  established,  that  a' 
dedication  of  real  estate  to  jDublic  use  may  be  made  by  mere 
verbal  declarations,  accompanied  with  such  acts  as  are 
necessary  for  that  purpose.^ 

It  is  upon  the  ground  of  want  of  intention  to  dedicate  it  to 
the  public,  that  no  man,  ordinarily,  loses  his  right  to  enclose 
a  strip  of  land  lying  between  his  buildings  and  the  highway, 
though  suffered  to  remain  open  to  the  same  for  ever  so  long 
a  period  of  years.^ 

13.  And  where  a  way  is  opened  as  a  private  way,  and  in- 
tended as  such,  and  this  can  be  shown,  no  length  of  use  by 
others  will  make  it  a  public  way.* 

14.  There  may,  moreover,  be  a  dedication  of  land  for 
special  uses.  But  it  must  be  for  the  benefit  of  the  public, 
and  not  for  a  particular  portion  of  it.  A  permissive  use  of 
a  way  by  certain  portions  of  the  community  constitutes  a 
license,  and  not  a  dedication,  and  is  ordinarily  something 
that  may  be  revoked. 

Thus  in  Stafford  v.  Coyney,  the  land-owner  suffered  the 

public  to  use  a  road  through  his  estate  for  several  years  for 

all  purposes  except  that  of  carrying  coals.     It  was  held,  at 

best,  to  be  but  a  partial  dedication  of  the  way  as  a  highway 

to  the  public.     "  The  public  must  take  secundum  formam 

doni ;  if  they  cannot  take  according  to  that,  they  cannot  take 
at  all."  5 

And  though  the  judges  in  that   case   expressed  doubts 

jyhether  there  could  be  such  a  partial  dedication,  the  point 

was  settled  in  Poole  v.  Huskinson,  where  it  was  held 

[*136]    that  *there  might  be  a  dedication  to  the  public  for  a 

1  Knight  V.  Ileaton,  22  Verm.  48.3. 

2  Hall  V.  M'Leod,  2  Mctc.  Ky.  104. 

3  Govven  V.  Pliila.  Exchange  Co.,  5  Watts  &  S.  141  ;  Tallmadge  v.  E.  River 
Bank,  26  N.  Y.  108. 

*  Hall  V.  M'Leod,  2  Mete.  Ky.  98. 

'>  Stafford  v.  Coyney,  7  Barnew.  &  C.  257. 


Sect.  5.]  EASEiMENTS   BY   DEDICATION.  185 

limited  purpose,  as  for  a  foot-way,  a  horse-way,  or  a  drift- 
way, thouf>'li  there  cannot  be  a  dedication  to  a  limited  part 
of  the  public.^ 

In  Barraclough  v.  Johnson,  the  owner  of  the  land  opened 
the  way  for  public  use,  upon  an  agreement  Ijy  an  iron  com- 
pany and  the  people  of  the  hamlet  to  pay  him  five  shillings  a 
year,  and  to  find  cinders  to  repair  the  way  with.  It  was  held 
to  be  a  revocable  license  only,  and  not  a  dedication,  though 
it  had  been  used  by  any  person  wishing  to  pass  over  it  for 
nineteen  years.  Denman,  C  J.  says  in  that  case  :  "  A  dedi- 
cation must  be  made  with  intention  to  dedicate.  The  mere 
acting  so  as  to  lead  persons  into  the  supposition  that  the  way 
is  dedicated  does  not  amount  to  a  dedication,  if  there  be  an 
agreement  which  explains  the  transaction," 

And  in  Hemphill  v.  City  of  Boston,  the  court  held  that  it 
was  competent  to  dedicate  a  way  as  a  foot-way,  without  mak- 
ing the  city  liable  to  keep  it  in  suitable  repair  for  the  passage 
of  carriages. 

15.  Waiving,  for  the  present,  what  would  be  sufficient  evi- 
dence of  a  dedication,  the  purposes  for  which  the  use  of 
land  may  be  dedicated  are  various,  and  the  effect  of  such  a 
dedication  varies  according  to  the  nature  of  the  use  to  which 
the  land  is  to  be  applied.^ 

Thus,  by  the  civil  law,  if  a  thing  was  dedicated  to  sacred 
and  religious  uses,  it  ceased  to  belong  to  individuals,  and  a 
piece  of  ground  became  such  by  depositing  within  it  a  dead 
human  body  ;  and  this  conforms  in  some  measure  with  the 
common  law.^ 

*At  common  law,  it  has  been  held  that  there  may  [*137]« 
be  a  dedication  to  public  and  pious  uses,  such  as 

1  Poole  V.  Hiiskinson,  1 1  Mees.  &  W.  827  ;  Barracloufjrh  ;;.  Johnson,  8  Adolph. 
&  E.  99;  Gowen  v.  Pliila.  Exchange  Co.,  5  Watts  &  S.  141  ;  Hemphill  r.  City 
of  Boston,  8  Cush.  195.  See  Woolr.  Ways,  13;  The  King  v.  Northampton,  2 
Maule  &  S.  262 ;  State  v.  Trask,  6  Vt.  355 ;  Danforth  v.  Durell,  8  Allen,  244. 

2  Eowan  v.  Portland,  8  B.  Monr.  248. 

8  Inst.  2,  1,  7  and  9;  Bract.,  fol.  8;  Abbott  v.  Mills,  3  Vt.  521;  Pawlet  v. 
Clark,  9  Cranch,  293,  331. 


186  THE  LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

glebe  land  or  land  for  the  erection  of  a  clnirch,  for  the  use 
of  a  non-existing  church,^  or  for  purposes  of  burial  of  the 
dead.2 

So  there  may  be  a  dedication  of  a  spring  of  water  to  pub- 
lic use,''  or  land  for  a  public  square  in  a  city,'*  or  for  a  street 
or  public  highway ,5  or  for  a  public  quay  or  landing-place 
upon  the  bank  of  a  river,^  or  for  public  commons,  or  for  sites 
for  court-houses  or  other  public  buildings,'^  and  it  would 
seem  that  "  all  sorts  of  easements  and  rights  to  enjoyment  of 
land,  whether  for  use  or  of  pleasure,  which  may  be  acquired 
by  an  individual  by  grant  or  prescription,  may  also  be  ac- 
quired by  the  public  by  actual  dedication."^ 

16.  It  is  not  necessary,  in  order  to  effectuate  a  dedication, 
that  the  owner  of  the  land  dedicated  should  part  with  the 
fee  of  the  same.  Nor  is  it  inconsistent  with  an  effectual  ded- 
ication, that  the  owner  should  continue  to  make  any  and  all 
uses  of  the  same  which  do  not  interfere  with  the  uses  for 
which  it  is  dedicated.^  And  where  one  who  had  dedicated 
a  publid  way,  between  wliich  and  the  land  of  a  third 
[*138]  person  there  was  a  ditch,  and  the  latter,  in  order  *to 
gain  access  from  his  land  to  the  way,  laid  a  bridge 
across  the  ditch,  one  end  of  which  rested  upon  the  way,  it 

1  Pawlet  V.  Clark,  9  Cranch,  293. 

2  Bcatty  V.  Kurtz,  2  Pet.  506,  583. 

8  M'Connell  v.  Lexington,  12  Wheat.  582. 

*  Cincinnati  v.  Wliite,  6  Pet.  431  ;  Commonwealtli  v.  Alburger,  1  Whart.  469; 
2  Smith,  Lead.  Cas.,  5th  Am.  ed.,  222. 

^  Denning  v.  Roome,  6  Wend.  651. 

6  New  Orleans  v.  United  States,  10  Pet.  662,  712;  Gardiner  v.  Tisdale,  2 
Wise.  153  ;  Godfrey  v.  City  of  Alton,  12  111.  29  ;  Bolt  v.  Stcnnett,  8  T.  K.  606. 

^  Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill,  407  ;  Watertown  v.  Cowen,  4 
Paige,  510;  Abhott  r.  Mills,  3  Vt.  521. 

8  Post  V.  Pearsall,  22  Wend.  480,  per  Vcrphnrl-  ;  Rowan  v.  Portland,  8  B. 
Monr.  232. 

2  Al)bott  V.  Mills,  3  Vt.  521  ;  Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill,  407  ; 
State  V.  Wilkinson,  2  Vt.  480  ;  Ilobbs  v.  Lowell,  19  Pick.  405  ;  Post  v.  Pearsall, 
22  Wend.  451  ;  Cincinnati  v.  White,  6  Pet.  431 ;  Barclay  v.  Howell,  6  Pet.  498; 
Gardiner  v.  Tisdalc,  2  Wise.  153,  194;  Connehan  v.  Ford,  9  Wise.  240;  Scott  v. 
State,  1  Sneed.  632 ;  Commissioners,  &c,  v.  Taylor,  2  Bay,  290 ;  Schurmeier  v. 
St.  P.  &  Par,  R.  R.  10  Min.  104. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  187 

was  held  that  the  owner  of  the  soil,  notwithstanding  the 
dedication,  miglit  have  trespass  against  the  party  who  con- 
structed the  bridge.^ 

17.  The  doctrine  of  prescription  is  not  applicable  to  the 
case  of  dedication,  so  as  to  require  evidence  of  a  long  user 
in  order  to  establish  the  right.  A  valid  dedication  may  be 
made  by  a  single  act,  if  positive  and  unequivocal  in  its  na- 
ture, and  especially  where  purchases  have  been  made  upon 
the  faith  which  the  act  was  meant  to  induce.  To  constitute 
a  public  use,  it  is  not  necessary  that  the  public  at  large,  that 
is,  all  persons  without  distinction,  shall  be  able  or  be  enti- 
tled to  share  in  its  advantages,  but  it  is  sufficient  that  its 
advantages  are  meant  to  be  shared,  and  may  be  shared,  by 
the  inhabitants,  or  a  portion  of  the  inhabitants,  of  a  city, 
town,  or  village,  or  other  locality.  Though  the  above  is  the 
language  of  the  court,  Duer,  J.,  in  Ward  v.  Davis,  and  is 
believed  to  be,  in  most  respects,  sustained  by  other  decided 
cases,  it  will  be  seen  that  a  different  doctrine  is  mentioned 
in  other  cases  as  to  a  dedication,  properly  speaking,  being 
limited  to  certain  portions  of  the  public.^ 

18.  It  has  accordingly  been  held,  that  the  proprietors  of 
town  lots  adjoining  a  street  which  has  been  dedicated  to  the 
public  acquire,  thereby,  rights  in  the  street  of  a  private  char- 
acter distinct  from  that  which  the  public  have,  and  may 
have  an  action  for  damages  for  any  obstruction  in  or  injury 
to  such  street ;  ^  whereas,  if  one  purchase  a  village  or  town 
lot  bounded  upon  a  public  street,  he  acquires  thereby  no 
right  of  a  private  character,  distinct  from  the  use  which 
every  one  of  the  public  may  claim,  although  the  foe 

of  his  *land  in  fact  extends  to  the  centre  line  of  the  [*139] 
street,  subject  only  to  the  public  easement.'^ 

1  Lade  v.  Shejjherd,  2  Strange,  1004. 

2  Ward  V.  Davis,  3  Sandf.  502. 

3  Indianapolis  v.  Croas,  7  Ind.  9;  Haynes  v.  Tliomas,  Ibid.  38;  Tate  v.  Ohio 
&  Miss.  R.  K.  Co.,  Ibid.  479.  But  see  Mercer  i'.  Pittsburg,  &c.  K.  R.  Co.,  36 
Penn.  St.  99 ;  j'ost,  pi.  2.5;  ante,  p.  *129. 

*  Kimball  v.  City  of  Kenosha,  4  Wise.  321.     See  Barclay  v.  Howell,  6  Pet.  498. 


188  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

19.  To  constitute  a  dedication  requires,  however,  no  grant 
or  conveyance  by  deed  or  writing  on  the  part  of  the  owner 
of  the  land.  If  he  shall  do  such  acts  in  pais  as  amount  to  a 
dedication,  the  law  regards  him  as  estopped  in  pais  from  de- 
nying that  the  public  have  a  right  to  enjoy  what  is  dedicated, 
or  from  revoking  what  he  had  thus  declared  by  his  acts. 
And  there  may  be  a  dedication  to  the  use  of  a  town  before 
it  shall  have  been  actually  incorporated,  or  it  may  be  to  the 
public,  —  a  body  not  capable  of  taking  a  grant,  —  the  only 
limit  being,  that  what  is  dedicated  is  suited  to  the  wants  of 
the  community  at  large.^ 

20.  And  a  dedication,  when  once  made  to  and  accepted 
by  the  public,  is  in  its  nature  irrevocable.^ 

If  one  make  a  dedication  of  his  land  to  public  uses,  he  will 
be  at  liberty  to  revoke  this  at  any  time  before  the  same  has 
been  accepted,  but  not  afterwards.^ 

21.  If,  in  this  connection,  it  is  asked  what  length  of  time 
is  necessary  in  order  to  have  a  dedication  become  effectual, 
it  is  believed  there  is  no  period  or  term  of  enjoyment  neces- 
sary, as  in  the  case  of  prescription.  Length  of  enjoyment 
may  be  regarded,  when  the  evidence  of  a  dedication  having 
been  made  depends  upon  a  user  by  the  public  of  the  thing 
dedicated.  But  as  all  that  is  requisite  to  constitute  a  good 
dedication  is,  that  there  should  be  an  intention  and  an  act 
of  dedication  on  the  part  of  the  owner,  and  an  acceptance  on 
the  part  of  the  public,  as  soon  as  these  concur,  the  dedi- 

1  2  Smith,  Lead.  Cas.,  5th  Am.  ed.  209 ;  Cincinnati  v.  White,  6  Pet.  431 ; 
New  Orleans  v.  United  States,  10  Pet.  662,  712  ;  Cady  v.  Conjjer,  19  N.  Y.  256  ; 
Iliiyncs  V.  Tliomas,  7  Ind.  .38;  Warren  v.  Jacksonville,  15  III.  236;  Cole  v. 
Sprowl,  35  Me.  161  ;  Skccn  v.  Lynch,  1  Robins.  Va.  186;  Vick  v.  Vicksburg,  1 
How.  Miss.  379;  Connehan  v.  Ford,  9  Wise.  240;  Commonwealth  v.  Fisk,  8 
Mete.  238 ;  Ward  v.  Davis,  3  Sandf.  502 ;  Wrifiht  ;».  Tukey,  3  Ciisli.  294. 

■-^  State  V.  Trask,  6  Vt.  355 ;  New  Orleans  v.  United  States,  10  Pet.  662  ;  Com- 
monwealth V.  AlhiirRer,  1  Whart.  469  ;  Missouri  Institute,  &c.  v.  How,  27  Mo. 
211  ;  Huber  v.  Gazley,  18  Ohio,  18;  Rowan  v.  Portland,  8  B.  Monr.  232,  247; 
Raf,'an  v.  M'Coy,  29  Mo.  35G  ;  Scott  v.  State,  1  Sneed.  632;  Dubuque  v.  Ma- 
lony,  9  Iowa,  455. 

3  Baker  v.  St.  Paul,  8  Min.  494. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  189 

cation  is  complete.  Ordinarily,  there  is  no  other  mode  of 
showing  an  acceptance  by  the  public  of  a  dedication, 
tlian  *by  its  being  made  use  of  by  them,  and  this  [*140] 
must  be  sufficiently  long  to  evince  such  acceptance, 
depending,  of  course,  upon  the  circumstances  of  each  case. 
It  is  not  compulsory,  at  common  law,  upon  tlie  public  to 
accept  the  user  of  a  way  when  offered  ;  ^  but,  when  accepted, 
the  dedication  is  complete.^  Six  or  seven  years  liave,  in  some 
cases,  been  held  to  be  sufficient,  and  in  no  case  has  tlie  time 
been  measured  by  that  required  to  create  a  prescription. 

As  there  may  be  a  qualified  or  limited  dedication,  having 
regard  to  the  uses  and  purposes  for  which  the  thing  dedi- 
cated may  be  applied,  so  there  may  be  a  limited  or  partial 
acceptance  of  what  has  been  dedicated  in  a  more  general 
form,  and  in  that  case  the  dedication  takes  effect  only  in  its 
limited  or  qualified  form.  But  when,  and  so  far  as  the  ded- 
ication is  accepted,  it  takes  effect,  and  the  owner  of  the 
soil  is  thenceforward  excluded  from  reasserting  his  ancient 
rights.^  If,  however,  the  only  evidence  of  the  dedication  of 
a  way  is  its  having  been  used  as  such  by  the  public,  such 
user,  in  order  to  constitute  sufficient  evidence  of  such  dedi- 
cation, must  have  continued  for  at  least  twenty  years."^  And 
it  seems  that  it  must  have  been  so  used  as  to  show  that  the 
public  require  it  for  their  accommodation,  and  that  the  own- 
er intended  to  dedicate  it.^ 

1  Fisher  v.  Brown,  2  B.  &  Smith,  770;  Robbins  v.  Jones,  C.  B.  26  Law  Rep. 
291. 

2  Baker  v.  St.  Paul,  8  Min.  494. 

3  Abbott  V.  Mills,  3  Vt.  521 ;  Denning  v.  Roomc,  6  "Wend.  651  ;  Woolard  r. 
M'CuUough,  1  Ired.  432  ;  State  v.  Trask,  6  Vt.  355  ;  State  v.  Marble,  4  Ired.  318  ; 
Shaw  V.  Crawford,  10  Johns.  236 ;  Post  v.  Pearsall,  22  Wend.  425  ;  Gowen  v. 
Phila.  Excliange  Co.,  5  Watts  &  S.  141 ;  Green  v.  Chelsea,  24  Pick,  71  ;  Bar- 
clay V.  Howell,  6  Pet.  498,  513 ;  Cincinnati  v.  White,  6  Pet.  431  ;  Woodyer  v. 
Hadden,  5  Taunt.  125  ;  Pritchard  v.  Atkinson,  4  N.  H.  1, 13 ;  State  v.  Campton, 
2  N.  II.  513  ;  Child  v.  Chappell,  5  Seld.  246  ;  Carpenter  v.  Gwynn,  35  Barb.  395  ; 
Schcnlcy  v.  Commonwealth,  &c.,  36  Penn.  St.  29 ;  Connehan  v.  Ford,  9  Wise. 
240;  Commonwealth  v.  Fisk,  8  Mete.  238;  Scott  v.  State,  1  Snced.  633. 

*  Hoolc  V.  Attorney-General,  22  Ala.  190;    Gould  v.  Glass,  19  Barb.  179; 
Smith  V.  State,  3  N.  J.  130  ;  Hutto  v.  Tindall,  6  Rich.  396. 
6  State  V.  Nudd,  3  Fost.  327. 


190       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

In  Jarvis  v.  Dean,  four  or  five  years  use  of  a  passage-way 
by  the  public,  witli  the  full  assent  of  the  owner  of  the  soil, 
was  held  sufficient  to  constitute  it  a  thoroughfare.^  While 
in  Rugby  Charity  v.  Merryweather,  though,  by  fifty  years' 
use  of  a  way  as  a  thoroughfare,  it  was  held  to  have 
[*141]  become  a  *  public  highway,  which  the  owner  of  the 
soil  might  not  close,  it  would  have  been  otherwise  if 
he  had  had  a  bar  across  the  passage-way,  which  could  be, 
and  occasionally  was  closed,  as  this  circumstance  bore  upon 
the  question  of  intent.^ 

On  the  other  hand,  the  court,  in  Woodyer  v.  Hadden,  in. 
speaking  of  the  length  of  time  requisite  to  effect  a  dedica- 
tion, say  :  "  If  the  act  of  dedication  be  unequivocal,  it  takes 
place  immediately  ;  for  instance,  if  a  man  builds  a  double 
row  of  houses  opening  into  an  ancient  street  at  each  end, 
making  a  street,  and  sells  or  lets  the  houses,  that  is  instantly 
a  highway."  ^  User  for  a  short  time  by  express  and  une- 
quivocal treatment  of  the  strip  of  land  as  a  street,  is  suffi- 
cient.* 

22.  In  some  States,  as  will  more  fully  appear,  there  are 
statutes  which  prevent  a  way  becoming  a  highway  by  a  mere 
dedication  to  and  user  by  the  public.  There  are  cases  where 
the  streets  of  a  village,  for  instance,  are  laid  out  upon  a  plan 
of  lots,  and  these  are  sold  in  reference  to  the  plan,  whereby 
the  purchasers  of  the  lots  acquire  rights  of  way  along  these 
streets  as  easements  appurtenant  to  their  lots,  and  yet  the 
streets  do  not  necessarily  become  dedicated  to  the  public 
use,  though  used  by  the  people  having  occasion  to  do  so. 
Thus  in  Child  v.  Chappell,  where  a  partition  of  a  parcel  of 

1  Jarvis  v.  Dean,  3  Bing.  447. 

2  Rugby  Charity  v.  Merryweather,  11  East,  376,  note.  See  Post  v.  Pearsall, 
22  Wend.  425. 

3  Woodyer  ;;.  Iladdcn,  5  Taunt.  125.  See  also  Ilobbs  i-.  Lowell,  19  Tiek.  405  ; 
Woolr.  Ways,  10  ;  Child  v.  Chappell,  5  SeUl.  2-16;  Hunter  v.  Trustees  of  Sandy 
Hill,  6  Hill,  407,  414  ;  Ward  v.  Davis,  3  Sandf.  502  ;  Phca  v.  Forsyth,  37  Penn. 
St.  503;  Missouri  Institute,  &c.  v.  How,  27  Mo.  211  ;  State  v.  Atherton,  16  N. 
H.  211. 

*  Bis.sell  V.  N.  Y.  Cent.  R.  R.,  26  Barb.  035. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  191 

land  into  lots  was  made,  with  a  part  left  for  a  mill-yard  and 
a  basin  and  a  road,  all  laid  down  upon  a  plan,  it  was  held 
to  bind  the  parties  to  permit  the  parts  thus  indicated  to  be 
used  for  the  purposes  designated.  "  As  between  the  par- 
ties, their  heirs  and  assigns,"  say  the  court,  "  it  fixes  the 
servitude  of  a  public  way  upon  the  land  thus  laid  out  as 
streets."  But  the  Judge  (Morse)  was  of  opinion,  that  such 
an  appropriation  would  not  be  a  dedication  as  between  the 
owners  and  tlie  public.  "  I  take  a  dedication  to  the 
public  *of  land  for  a  public  highway  to  be  something  [*142] 
more  than  an  act  pf  the  owner  of  the  laud.  The 
dedication  is  not  complete  or  binding  until  accepted  by  a 

public  user,  or  some  other  indication  of  acceptance 

As  a  rule  of  wisdom,  the  acceptance  of  a  dedication  of  land 
for  public  use  may  be  presumed  from  the  beneficial  nature  of 
the  dedication."  ^  The  necessity  of  an  acceptance  by  the 
public  of  a  dedicated  way  before  it  can  become  a  public  way, 
seems  to  be  admitted  as  almost  an  elementary  principle.  The 
difficulty  lies  in  what  shall  be  such  an  acceptance.  Thus  it 
is  stated  in  Gentleman  v.  Soule,  there  must  be  an  intention 
to  dedicate  on  the  part  of  the  owner  of  the  land,  and  an  ac- 
ceptance on  the  part  of  the  public,  evinced  by  acts  such  as 
taking  charge  of  and  repairing  the  highway  by  the  proper 
county  or  town  authorities. ^  In  New  Hampshire,  it  was  held 
that  there  must  be  an  acceptance  which  may  be  shown  by 
twenty  years'  user  without  objection,  or  by  making  repairs 
or  setting  up  guide-boards  or  other  official  recognition.^ 

23.  In  the  case  of  Clements  v.  West  Troy,  the  proprietors 
of  that  village  laid  out  the  same  by  a  plan,  upon  w^iicli  an 
alley  was  laid  down,  and  house-lots  were  conveyed  bounding 
on  this  alley.  The  court  say:  "As  between  the  original 
proprietors  and  those  to  whom  they  conveyed,  this  act  of  the 

1  Child  V.  Chappell,  5  Seld.  246 ;  post,  chap.  2,  sect.  .3,  pi.  6.  See  also  Oswego 
V.  Oswego  Canal  Co.,  2  Seld.  257  ;  Clements  v.  West  Troy,  16  Barb.  251  ;  Com- 
monwealth V.  Rush,  14  Pcnn.  St.  186. 

2  32  111.  280;  ante,  p.  *126. 

3  State  V.  Atherton,  16  N.  H.  210. 


192  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  I. 

proj)rietors  secured  a  right  of  way.  But  the  alley  thus  des- 
ignated, and  in  respect  to  which  the  purchasers  of  the  lots 
had  acquired  an  indefeasible  right  of  way,  did  not  thereby 
become  a  public  highway.  The  dedication  must  be  accepted. 
The  highway  must  be  laid  out.  Until  that  is  done,  the  alley 
would  remain  the  property  of  the  original  proprietors,  sub- 
ject to  the  right  of  way  in  those  who  had  taken  the  deeds  of 
lots  bounded  upon  the  alley."  ^ 

24.  The  case  of  Bowers  v.  Suffolk  Manufacturing  Co.  serves 
further  to  illustrate  how  far  there  may  be  acts  of  dedication 
of  ways  as  public  ways,  so  that,  though  not  actually  dedicated 
so  as  to  become  a  highway,  the  public  may  use  them  so  long 
as  they  are  kept  open,  and  yet  the  proprietors  of  lands  over 
which  they  pass,  and  those  to  whose  estates  they  are  appur- 
tenant, may  still  have  all  the  rights  in  respect  to  the  same  as 
if  they  were  strictly  private  ways.  It  was  one  of  the  instances 
where  an  easement  may  become  appurtenant  to  each  of  many 
estates  by  a  process  like  that  of  dedication,  and  be  com- 
mon to  them  all,  without  becoming  a  public  easement,  and 
without  detracting  from  the  right  of  each,  to  whose 
[*143]  *tenement  the  right  of  easement  has  become  appur- 
tenant, to  seek  a  private  remedy  for  any  injury  to  his 
own  enjoyment  of  the  same.  The  facts  were  these.  Certain 
proprietors  of  an  extensive  tract  of  land,  water-power,  &c., 
laid  out  R.  Street  over  the  same  from  a  county  road  to  H. 
Street  (which  they  also  laid  out),  and  marked  R.  Street  for 
a  carriage-way  and  public  travel,  and  the  same  was  used  by 
any  person  having  occasion  to  do  so,  no  gate  nor  barrier  hav- 
ing been  erected  thereon.  In  1832,  after  these  acts  done, 
the  proprietors  sold  to  the  defendants  the  lands  lying  on  both 
sides  of  the  northerly  end  of  R.  Street,  and  the  land  over 
which  that  part  of  the  street  was  laid  out,  by  an  indenture 
in  which  it  was  covenanted  that  the  streets  described  therein 

1  Clements  v.  West  Troy,  16  Barb.  251.  See  Child  v.  Chappell,  5  Seld.  246; 
Rhea  V.  Forsyth,  37  Penn.  St.  503 ;  ante,  p.  *129;  Iloldcn  v.  Trustees,  23  Barb. 
103. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  193 

should  be  maintained  as  roads,  "  for  the  common  use  of  the 
parties  hereto,  their  successors  and  assigns,  each  keeping  in 
repair  those  parts  which  pass  over  their  respective  estates," 
and  referring  to  a  plan  on  which  R.  Street  was  laid  down 
fifty  feet  wide  from  the  county  road  to  H.  Street.  In  1844 
the  proprietors  sold  the  plaintiff  a  lot  bounding  on  R.  Street, 
with  all  privileges  and  appurtenances,  on  which  he  built  a 
house  and  resided  therein.  Before  this,  four  other  house- 
lots  on  R.  Street  had  been  sold  by  the  proprietors  to  other 
persons.  In  1845  the  proprietors  sold  at  auction  all  their  re- 
maining lands  on  R.  Street  and  in  the  neighborhood,  refer- 
ence being  made  to  printed  plans  and  conditions  of  sale. 
And  on  this  plan  R.  Street  was  laid  down  fifty  feet  wide. 
One  of  the  conditions  of  sale  was  as  follows  :  "  The  streets 
mentioned  in  the  catalogue,  and  laid  down  on  the  plans,  are 
all  to  be  reserved  and  kept  open  for  the  benefit  of  the  abutters, 
but  they  are  not  all  graded.  Any  street  reserved,  and  not 
graded,  may  be  altered  or  discontinued  with  the  consent  of 
all  the  abutters  thereon."  There  were  twenty  lots  then  sold 
on  R.  Street,  on  which  buildings  were  afterwards  erected. 
In  1846  the  city  laid  out  R.  Street  as  a  public  street  over  a 
part  of  the  distance  from  the  county  road  to  H.  Street,  the 
plaintiff's  house  being  upon  the  part  thus  laid  out. 
In  *1847  the  defendants  dug  up  R.  Street  at  a  point  [*144] 
beyond  where  it  had  been  located  as  a  highway,  to- 
wards H.  Street,  for  tlie  purpose  of  putting  in  hydraulic 
works  for  their  use,  which  rendered  R.  Street  in  that  place 
for  the  time  impassable  ;  and  when  the  work  should  be  com- 
pleted, it  would  permanently  occupy  and  obstruct  a  part  of 
the  fifty  feet  in  width.  For  this  obstruction  the  plaintiff 
brought  his  action.  The  question  was,  whether  the  plaintiff, 
as  owner  of  a  tenement  on  R.  Street,  had  a  right  of  action  for 
this  obstruction,  at  a  point  remote  from  his  own  estate,  no 
special  damage  having  been  shown.  It  was  insisted  that,  the 
way  having  become  public  by  dedication,  the  remedy  was  by 
indictment,  and  that  a  private  action  would  not  lie  without 

13 


194  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

showing  actual  damage  to  the  plaintiff.  The  court  held  that, 
though  this  was  true  if  such  were  the  fact,  the  street  had  not 
been  dedicated  as  a  public  highway.  If  it  had  simply  been 
opened  and  used,  it  might  be  evidence  of  an  intent  to  dedi- 
cate it.  But  in  the  deed  of  tlie  land  over  which  R.  Street 
was  laid  out,  it  was  to  be  maintained  for  the  common  use  of 
the  parties  thereto,  each  keeping  in  repair  those  parts  that 
passed  over  his  respective  estate.  And,  at  the  auction,  the 
streets  were  reserved  and  kept  open  for  the  benefit  of  the 
abutters,  and  any  street  not  graded  might  be  discontinued 
by  the  consent  of  the  abutters  thereon.  The  use  actually 
made  by  the  public  could  not  alter  the  intention  with  which 
the  street  was  laid  out,  as  thus  indicated.  But  even  if  it  was 
the  intention  of  the  proprietors  to  dedicate  the  street,  it  could 
only  become  such  by  the  assent  of  the  city,  express  or  im- 
plied, so  as  to  make  the  city  liable  for  its  repair.  The  land- 
owners, in  such  case,  might  not  be  entitled  to  maintain  tres- 
pass against  any  one  who  might  pass  over  it  while  it  remained 
open.i  g^(;  ^^qj  niight  shut  up  the  way,  and  the  right  of 
passing  over  it  would  thereby  be  terminated,  the  opening  of 
the  street  being  a  license,  and  not  a  grant  or  dedication. 

The  court  held  that  the  action  could  be  maintained. 
[*145]   "  The  plaintiff,  by  a  grant  from  the  proprietors  *of 

the  land  over  which  R.  Street  had  been  laid  out  by 
them,  did  acquire  a  good  title  to  the  right  of  way  claimed, 
for  the  disturbance  of  wliich  the  defendants  are  liable."^ 

25.  But  where  a  street  has  been  actually  dedicated  to  the 
public  by  the  act  and  intent  of  the  owner  of  the  soil,  and  by 
what  shows  an  acceptance  by  the  public,  it  becomes  a  public 
highway,  and  the  owners  of  the  adjacent  land,  whether  the 
original  proprietors  or  purchasers  under  them,  have  no  other 
rights  in  it  than  the  adjoining  owners  of  any  other  public 
highway.^ 

1  Ante,  p.  *133. 

2  Bowers  V.  Suffolk  Mg.  Co.,  4  Cush.  332.    Sec  Rowan  v.  Portland,  8  B.  Monr. 
232. 

3  Mercer  v.  Tittsburg,  &c.  R.  R.  Co.,  36  Pcnn.  St.  99.     See  ante,  pi.  18. 


Sect.  5.]  EASEMENTS    BY    DEDICATION.  195 

And  one  who  shall  obstruct  a  dedicated  highway,  would  be 
liable  to  an  indictment,  but  not  to  a  civil  action  by  any  one 
to  recover  the  land  over  which  it  is  laid.^ 

26.  Citations  might  easily  be  multiplied,  where  streets 
have  become  dedicated  as  public  lughways,  so  far,  at  least, 
as  the  owner  of  the  soil  is  concerned,  although  the  same  may 
never  have  been  opened  or  wrought.  And  among  them  are 
cases  where  the  owner  of  city  lots  has  sold  them  by  a  plan  on 
which  streets  have  been  designated  by  the  proper  officers  to 
locate  and  establish  the  same,  and  has  bounded  the  lots  sold 
by  such  streets.  The  soil  of  the  streets  in  such  cases  is  dedi- 
cated thereby  to  the  public  use.^  And  the  same  was  held  in 
the  case  of  the  city  of  Pittsburg,  without  the  same  having 
actually  been  designated  as  highways  by  an  officer  qualified 
to  locate  the  same.'^ 

26  a.  In  some  of  the  Western  States  there  seems  to  be, 
sometimes  by  statute  and  sometimes  by  usage,  a  mode  of  dedi- 
cating streets,  public  landings,  quays,  squares,  <fe;c.,  in  towns, 
by  the  proprietors  laying  down  and  describing  these  by  plats 
upon  the  plan  of  the  location  of  the  town  or  village,  and  in 
some  cases  causing  this  plat  to  be  recorded  for  general  refer- 
ence. Tiiough,  carrying  out  the  notion  of  dedication  at  com- 
mon law,  these,  in  some  measure,  form  a  class  by  themselves. 
Several  of  these  cases  have  already  been  cited,  A  few  others 
have  been  collected  for  illustrating  the  subject.  Thus,  in 
Minnesota,  a  statute  provides  for  dedicating  lands  for  city 
purposes  by  recording  a  plat  of  the  same  duly  acknowledged 
by  the  owners  thereof,  and  certified  by  the  surveyor.  If  this 
has  been  done  it  cannot  be  revoked  by  the  owner.     But  if 

^  Commissioners  v.  Taylor,  2  Bay,  291. 

2  Matter  of  Thirty-second  Street,  N.  Y.,  19  Wend.  128;  Matter  of  Twenty- 
ninth  Street,  N.  Y.,  1  Hill,  189;  Wyman  v.  Mayor  of  New  York,  11  Wend. 
486 ;  Livingston  v.  Mayor  of  New  York,  8  Wend.  85  ;  Matter  of  Thirty-ninth 
Street,  N.  Y.,  1  Hill,  190 ;  Matter  of  Seventeenth  Street,  1  Wend  262,  270  ; 
Vick  I'.  Vicksburg,  1  How.  Miss.  379  ;  Hector  v.  Hartt,  8  Mo.  448.  See  Under- 
wood V.  Stuyvesant,  19  Johns.  181,  as  to  effect  of  commissioners  refusing  to 
open  the  street.     Dubuque  v.  Malony,  9  Iowa,  455. 

8  Barclay  v.  Howell,  6  Pet.  498,  504. 


196      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

streets  are  laid  out  by  such  plan  or  plans,  they  must  have 
been  accepted  on  the  part  of  the  public  in  order  to  be  effec- 
tual. After  they  have  been  accepted  they  cannot  be  revoked. 
And  acceptance  may  be  evidenced  by  their  being  used  by  the 
public.     The  fee,  however,  remains  in  the  dedicator.^ 

And  although  the  plat  or  the  record  of  it  is  defective,  it 
may  become  a  yalid  dedication,  if  the  public  accept  it  before 
it  is  withdrawn  by  the  owner.^ 

So,  in  Indiana,  the  laying  down  of  streets,  &c.,  on  a  town 
plat,  and  recording  the  same,  is  a  dedication  of  these  to  the 
public.^ 

The  dedication  of  streets,  &c.,  by  laying  them  down  upon 
plats  of  villages,  is  recognized  as  valid  in  Wisconsin.* 

The  same  seems  to  be  the  law  of  Missouri,  where  all  such 
plats  are  required  to  be  recorded.^ 

In  Iowa,  where  an  owner  lays  down  upon  the  plat  of  a  town 
the  streets,  &c.,  and  has  it  recorded,  the  title  to  such  parts 
as  are  set  apart  for  public  use,  or  charitable,  educational,  and 
religious  purposes,  passes,  thereby,  to  the  public,  but  nothing 
outside  of  the  lines  upon  the  plat.  So  that,  where  the  line 
of  dedication  next  to  the  Mississippi  river  left  a  strip  between 
that  and  the  bank,  it  was  held  not  to  be  a  dedication  of  that 
strip.  But  no  one  but  he  who  has  the  title  can  make  a  valid 
dedication.  Nor  does  the  dedication  take  effect  until  the 
public  shall  have  accepted  it.*^ 

In  Louisiana,  a  dedication  will  not  be  proved  by  a  mere 
plat,  unless  the  intention  to  dedicate  the  land  is  found  on  the 
plat  itself,  such  as  a  designation  of  it  as  a  street,  a  square, 
and  the  like.^ 

In  Illinois,  a  dedication  may  be  made  by  a  survey  and  plat 
alone,  without  any  declaration  either  oral  or  on  the  plat, 

1  Baker  v.  St.  Paul,  8  Minn.  493,  494  ;  Schurmcier  St.  P.  &  Pac.  R.  R.,  10 
Minn.  108. 

2  lb.  491.  8  Evansvillc  v.  Page,  23  IikI.  527. 

*  Sanborn  v.  Chicago,  &c.  R.  R.,  16  Wise.  19;  Yates  v.  Judd,  18  Wise.  118. 

6  Rev.  St.  e.  148  ;  Callaway  Co.  v.  Nolley,  31  Misso.  393. 

8  Cowles  V.  Gray,  14  Iowa,  1  ;  Grant  v.  Davenport,  18  Iowa,  186. 

T  David  V.  New  Orleans,  16  Louis.  An.  404. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  197 

where  it  is  evident,  from  the  face  of  the  plat,  that  it  was  the 
intention  to  set  apart  certain  grounds  for  puhlic  uses,  even 
if  the  ways  shall  not  have  been  actually  used  by  the  public. 
And  such  a  plat  of  a  town  and  street  may  operate  as  a  dedi- 
cation of  the  ways,  though  not  so  recorded  as  to  pass  the  fee 
to  the  city  corporation.^ 

26  b.  But  while  it  is  not  difficult  to  lay  down  intelligible 
rules  as  to  what  shall  be  an  act  of  dedication,  it  is  far  more 
difficult  to  define  what  is  to  be  received  as  sufficient  evidence 
of  an  acceptance  on  the  part  of  the  public  to  consummate  and 
give  effisct  to  such  dedication.  In  Connecticut,  the  court 
divided  upon  the  point,  two  of  the  judges  holding  that  some- 
thing more  than  mere  user  by  the  public  was  requisite  to 
constitute  the  acceptance  of  a  dedicated  way.^ 

But  in  a  subsequent  case,  the  court  reviewed  the  law  of 
dedication,  and  held  that,  as  there  are  no  statutes  upon  the 
subject,  it  is  governed  by  the  common  law,  that  if  one  dedi- 
cates his  land  to  the  public,  he  is  estopped  from  recalling  the 
act,  and  an  acceptance  by  the  public  may  be  presumed,  if 
the  thing  dedicated  be  of  public  convenience  and  necessity, 
and  therefore  beneficial  to  the  public.  Among  the  direct 
evidences  of  this  would  be  an  express  acceptance  by  the 
town,  a  reparation  of  the  way,  fof  instance,  by  its  officers, 
a  tacit  acquiescence  in  its  public  use,  recognizing  it  in 
maps,  boundaries  in  deeds,  or  reference  to  it  in  advertise- 
ments, and  especially  its  public  use  as  a  highway* without  ob- 
jection, by  all  who  have  occasion  to  use  it  as  such.^ 

By  the  English  common  law,  any  man  might  dedicate  a 
highway  to  the  public,  which  thereupon  was  to  be  kept  in  re- 
pair by  the  people  of  the  parish  or  township.  But  this  was 
altered  by  the  statute  of  5  &  6  Will.  IV.,  requiring  sundry  pre- 
liminary things  to  be  done  before  such  a  way  can  be  made  a 
public  charge.* 

1  Waiit;h  V.  Leech,  28  111.  492;  Godfrey  v.  Alton,  12  111.  35;  Banks  v.  Ogden, 
2  Wall.  U.  S.  .57. 

2  Green  v.  Canaan,  29  Conn.  172. 

8  Guthrie  v.  New  Haven,  31  Conn.  321. 
*  Reg.  V.  Dukinfield,  4  B.  &  Smith,  172. 


198  THE  LAW   OF   EASEMENTS  AND   SERVITUDES.  [Cir.  I. 

The  question  has  come  up,  several  times,  in  Vermont.  In 
the  first  of  these  it  was  held  that  mere  use  of  a  way  hy  com- 
mon travel  was  not  enough,  it  required  some  act  of  the  town 
by  their  officers  recognizing  the  road  to  be  a  public  highway, 
to  make  it  such.^  In  the  next,  a  miller  had  opened  a  way 
from  his  mill  to  the  highway,  and  it  had  been  used  for  many 
years.  But  the  court  held,  that  though  a  way  may  be  proved 
to  be  a  highway  by  its  having  been  recognized  as  such  by  a 
town,  by  doing  labor  upon  it,  or  authorizing  the  surveyor 
to  collect  and  expend  the  highway  tax  upon  it,  no  indi- 
vidual can  lay  out  a  way  for  his  benefit,  and  compel  the 
town  to  adopt  it.^  But  in  the  next  case  it  was  held  that  the 
town  might  adopt  a  highway  for  travel,  and  thereby  become 
liable  on  account  of  the  same.  If  the  town  or  selectmen  as 
their  agents  were  to  shut  up  an  old  road,  and  have  no  other 
avenue  for  travel  except  on  a  road  which  they  had  made  or 
caused  to  be  worked,  or  if  they  put  the  same  into  the  rate- 
bills  of  the  highway  surveyors  on  which  the  highway  tax  is  to 
be  worked,  the  town  would  be  liable.  But  the  consent  merely 
of  the  selectmen,  that  any  person  should  travel  on  any  path, 
whether  a  public  or  private  road,  is  no  act  by  which  the  town 
is  made  responsible,  nor  would  the  knowledge  of  the  select- 
men, that  the  traveller  supposed  it  to  be  a  public  highway, 
have  that  effect.^ 

The  last  of  the  cases  was  one  where  a  bridge  in  a  highway 
had  been  carried  away,  and  the  public  had  used  a  ford  across 
the  stream,  wiiich  was  wholly  outside  of  the  line  of  location 
of  the  original  way,  for  the  term  of  twenty  days,  and  the 
question  was,  if  the  town  were  liable  for  the  condition  of  this 
ford  as  being  a  dedicated  way.  The  court  say,  that  to  make 
a  public  way  by  dedication,  there  not  only  must  be  a  dedica- 
tion by  the  owner  of  the  land,  but  an  acceptance  by  the 
town.     Nor  would  acts  of  highway  surveyors  adopt  such  a 

1  Bailey  v.  Fairfield,  Brayt.  128. 

2  Paige  V.  Weathersfield,  13  Venn.  429. 
8  BloJiieu  V.  Uoyalton,  14  Verm,  294. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  109 

road,  since  that  is  not  within  their  agency.  Nor  is  it  enough 
that  the  town  has  suffered  the  way  to  be  travelled.  But 
Redfield,  C.  J.,  in  a  dissenting  opinion,  held  that  the  town 
would  be  liable,  if  they  suffered  a  road  to  remain  open  to 
public  use,  and  one  sustained  an  injury  by  reason  that  the 
same  was  unsafe  for  such  use.^ 

In  Michigan,  although  the  governor  and  judges  of  the 
Territory,  in  laying  out  the  city  of  Detroit,  had  laidt  down 
streets  and  alleys  upon  the  plat,  it  was  held  that  before  this 
dedication  could  become  effectual  in  respect  to  any  of  these 
streets,  it  must  have  been  accepted  by  the  proper  authorities 
on  behalf  of  the  public,  and  manifested  by  some  act,  such  as 
ordering  it  to  be  opened,  or  doing  acts  of  improving  or  regu- 
lating the  same.2 

In  Illinois,  where  a  canal  company  had  erected  a  bridge 
over  the  canal,  in  a  street  of  the  town,  it  did  not  render  the 
town  liable  in  consequence  of  its  condition,  unless  the  town 
had  adopted  it  as  a  way,  or  the  approaches  to  it  had  been 
constructed  by  the  town,  fitting  it  for  use  by  the  public,  and 
the  like.3 

In  New  York,  the  question  has  come  up  in  different  forms, 
and  it  is  difficult  to  draw  from  the  cases  any  uniform  rule 
upon  the  subject.  Thus  it  is  said  that  a  way  may  be  dedi- 
cated, and  will  become  a  highway,  when  laid  out  as  such  by 
the  constitute(J  authorities,  by  an  acceptance  of  the  dedica- 
tion by  those  authorized  to  act  for  the  public.  But  it  is  not 
competent  for  an  individual,  by  a  simple  act  of  dedication, 
to  impose  upon  the  public  the  burden  and  responsibility  of 
maintaining  a  highway.  Nor  will  the  mere  use  of  the  way 
by  the  public  make  an  acceptance,  if  for  a  less  time  than 
twenty  years.  Nor  could  the  public  prosecute  the  one  who 
had  dedicated  it,  for  having  shut  it  up  before  the  same  was 
accepted.* 

1  Hyde  v.  Jamaica,  27  Verm.  443.     See  Coggswell  v.  Lexington,  4  Cush.  307. 

2  Tillman  v.  People,  12  Mich.  401 ;  People  v.  Jones,  6  Mieh.  176. 

3  Joliet  V.  Verby,  35  III.  58. 

*  Trustees,  &c.  v.  Otis,  37  Barb.  50. 


200  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Ch.  I. 

In  another  case  the  court  held  that  the  acceptance  must  be 
by  some  express  corporate  or  official  act,  or  by  user,  distinct 
and  unequivocal,  of  such  street  as  a  public  road  or  highway.^ 

But  in  Holdane  v.  Trustees,  it  was  held  by  the  other  judges, 
against  Strong,  J.,  that  a  dedicated  way  may  acquire  the 
character  and  qualities  of  a  highway,  if  it  has  been  openly 
used  as  such,  though  there  had  been  no  formal  act  of  ac- 
ceptance done  by  the  public  authorities,  and  that  it  then  be- 
comes a  way  for  all  persons.^ 

And  in  one  case  in  Massachusetts,  where  streets  had  been 
laid  out  in  anticipation  of  the  future  wants  of  the  town,  and 
a  plan  of  tliese  made  which  was  regarded  as  a  dedication  of 
these  by  the  owners  of  the  land,  it  was  held  that  appropri- 
ating money  and  labor  in  working  any  of  these,  was  an  ac- 
ceptance of  such  as  were  thus  wrought  by  the  town,  and 
made  them  "  complete  highways."  ^ 

27.  But  in  case  of  the  dedication  of  a  public  square  for 
the  accommodation  of  county  buildings,  for  instance,  and 
they  are  erected  upon   another  locality,  or  for  that  of  a 

church,  which  is  erected  and  afterwards  removed 
[*146]  to  another  *locality,  the  owners  of  the  soil  may  re- 
sume the  possession  and  occupancy  of  the  land,  and 
the  public  right  therein  ceases.  It  might  be  otherwise  if, 
under  such  a  dedication,  the  square  had  been  enclosed  and 
ornamented  for  public  use,  and  the  public  had  actually  en- 
joyed it  for  purposes  aside  from  a  mere  space  for  the  accom- 
modation of  the  public  buildings.^ 

28.  In  Trustees  of  Watcrtown  v.  Cowen,  this  doctrine 
seems  to  be  extended  to  all  cases  where,  to  use  the  language 
of  the  court,  "  the  owners  of  urban  property  have  laid  it  out 
into  lots,  with  streets  and  avenues  intersecting  the  same,  and 
have  sold  their  lots  with  reference  to  such  plat.     It  is  too 

1  Bissell  V.  N.  Y.  Cent.  E.  R.,  26  Barb.  634. 

2  23  Barb.  123. 

8  -.Wriglit  V.  Tukey,  3  Cush.  295. 

*  Commonwealth  v.  Fisk,  8  Mctc.  238,  24.5  ;  State  v.  Trask,  G  Vt.  355. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  201 

late  for  them  to  resume  a  general  and  unlimited  control  over 
the  property  thus  dedicated  to  the  public  as  streets,  so  as  to 
deprive  their  grantees  of  the  benefit  they  may  acquire,  by 
having  such  streets  kept  open.  And  this  principle  is  equal- 
ly applicable  to  the  case  of  similar  dedications  of  lands  in  a 
city  or  village,  to  be  used  as  an  open  square  or  a  public 
walk."  1 

29.  But  although  the  mode  of  dedicating  land  to  the  pub- 
lic use  may  be  substantially  the  same,  whether  it  be  for  a 
highway,  a  public  square,  or  a  public  common,  yet  the  uses 
and  purposes  intended  being  different,  the  character  of  the 
easements  acquired  in  the  lands  dedicated  will  vary  accord- 
ing to  the  nature  of  these  uses.  Thus,  if  it  be  a  public  way, 
every  one  may  pass  over  it  at  his  will  and  convenience,  in 
any  usual  and  suitable  mode  of  travelling.  But  if  it  be  a 
public  common  or  square  in  a  village,  the  same  may  be  en- 
closed, improved,  and  ornamented  in  any  suitable  manner 
by  the  authorities  of  the  town  or  village,  at  their  discre- 
tion, for  purposes  of  health,  recreation,  or  business, 
*and  the  public  must  conform  to  these  in  their  use  [*147] 
of  the  same.^ 

Nor  will  the  law  extend  an  easement,  which  is  claimed  by 
construction  from  an  alleged  dedication  by  a  sale  of  city  lots, 
in  which  reference  is  made  to  plans,  &c.,  beyond  what  may 
fairly  be  supposed  and  understood  to  be  appurtenant  to  the 
particular  lot  sold,  and  to  be  enjoyed  therewith.  Thus, 
upon  the  sale  of  a  township,  a  plan  of  the  lots  into  which  it 
was  divided  was  exhibited  at  the  sale,  having  streets,  squares, 
&c.,  thereon,  and,  among  other  things,  lots  designated  as  sites 
of  churches.  One  of  these  was  indicated  as  the  site  of  a  Bap- 
tist church,  although  no  such  society  had  then  been  organized. 

1  Trustees  of  Watertowu  v.  Cowen,  4  Paige,  510;  Rives  v.  Dudley,  3  Jones, 
Eq.  No.  C.  126.  See  Barclay  v.  Howell,  6  Pet.  498,  507,  as  to  eifect  of  misapply- 
ing lands  dedicated  for  particular  purposes. 

2  Langley  v.  Gallipolis,  2  Ohio  St.  107  ;  Rowan  v.  Portland,  8  B.  Monr.  232  ; 
Wellington  Petitioners,  16  Pick.  87;  Commonwealth  v.  Rush,  14  Penn.  St.  186, 
190. 


202      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Cn.  I. 

Such  a  society  subsequently  took  possession  of  the  lot,  and 
erected  a  church  thereon,  and  proposed  to  sell  the  remainder 
of  the  lot.  The  other  purchasers  of  lots  objected,  and  in- 
sisted that  they  had  an  easement  in  this  lot,  not  to  have  it 
appropriated  to  other  than  church  purposes.  Nothing  had 
been  said  in  the  deeds  of  any  of  the  lots  of  any  easements 
belonging  to  the  same,  and  the  court  held  that  no  such  right 
as  was  here  claimed  passed  as  incident  to  the  lots  at  the  time 
of  the  original  purchase.^ 

30.  But  it  is  not,  after  all,  the  laying  down  of  streets  or 
squares  upon  the  plat  of  a  contemplated  city  or  village,  even 
though  the  same  may  be  publicly  exhibited  or  declared  by 
the  proprietors  thereof,  that  constitutes  a  dedication  of  these 
to  the  public.  There  must  be  a  sale  of  some  of  these  lots, 
having  reference  to  such  streets  or  squares,  and  some  adop- 
tion thereof  by  the  public  as  such,  in  order  to  create  a  dedi- 
cation of  these  to  the  public  use.^ 
[*148]  *31.  And  in  several  of  the  States,  a  mere  user  of 
streets  or  ways,  as  such,  by  the  public,  does  not  con- 
stitute an  acceptance  or  adoption  of  them  as  highways  by 
dedication,  unless  there  shall  have  been  a  location  of  the 
same,  as  public  ways,  by  the  proper  officers  of  the  town,  city, 
or  county,  authorized  by  the  statutes  of  the  State  to  make 
such  location.  The  statutes  in  these  States  supersede  or 
control  the  common  law  in  this  respect.  Such  is  understood 
to  be  the  case  in  New  York,  Virginia,  and  Massachusetts.^ 

The  above  cases  in  New  York  were  those  of  streets  or  ways 
laid  out  by  the  proprietors  of  village  lots.  And  in  that  of 
Clements  v.  West  Troy,  the  court  say  :  "  It  is  assumed  in  all 

1  Chapman  v.  Gordon,  29  Ga.  250. 

2  Logansport  ».  Dunn,  8  Ind.  378 ;  Child  v.  Chappcll,  5  Seld.  246;  Badeau 
V.  Mead,  14  Barb.  328;  People  v.  Beaubien,  2  Dougl.  Mich.  256;  Rowan  v. 
Portland,  8  B.  Monr.  232  ;  Vick  v.  Vicksburg,  I  How.  Miss.  379  ;  Westfall  v. 
Hunt,  8  Ind.  174;  People  v.  Jones,  6  Mich.  176;  Tillman  v.  People,  12  Mich. 
40.')  ;  Bissell  v.  N.  Y.  Cent.  R.  R.,  26  Barb.  634  ;  David  v.  N.  Orleans,  16  Louis, 
An.  406.     See  Green  v.  Canaan,  29  Conn.  171  ;  Elsworth,  J.,  dissenting  opinion. 

^  Oswego  V.  Oswego  Canal  Co.,  2  Seld.  257  ;  Clements  v.  West  Troy,  16 
Barb.  251 ;  Commonwealth  v.  Kelly,  8  Gratt.  632. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  203 

these  cases  that  the  mere  dedication  of  a  street  to  a  public 
use  does  not  make  it  a  public  street,  until  the  dedication  is 
ratified  by  the  public  authorities.  Tlie  same  proceedings 
must  be  had  for  opening  or  laying  out  such  street  as  if  there 
had  been  no  dedication."  ^ 

32.  In  Connecticut,  it  seems  all  that  is  necessary  to  create 
a  way  dedicated  to  the  public  a  public  highway,  is  evidence 
that  it  has  been  used  as  such  and  accepted  as  such,  and  this 
may  result  from  a  public  use  and  enjoyment,  though  such 
use  have  not  continued  for  the  ordinary  period  of  prescrip- 
tion.^ 

It  seems,  therefore,  to  be  a  mere  question  of  evidence  of 
acceptance,  for  it  was  said  in  Holmes  v.  Jersey  City,  that 
"  an  individual  cannot,  by  opening  a  road  upon  his  own  land, 
burden  the  public  with  maintaining  and  repairing  it,  or 
constitute  it  a  public  highway,  within  the  meaning  of  the 
road  act.  The  public  were  at  liberty  to  accept  this  dedi- 
cation in  whole  or  in  part,  or  utterly  to  disregard 

it *Tlie  mere  fact  of  dedication  by  map  and  [*149] 

survey,  and  the  opening  the  streets  as  laid  out,  did 

not  constitute  them  public  highways,  until  such  street  was 

in  some  way  accepted  and  ratified  by  public  authority."  ^ 

33.  The  subject  has  been,  of  late,  fully  considered  in  Mas- 
sachusetts, in  connection  with  a  statute  of  that  State  relating 
to  the  same.  The  case  of  Hobbs  v.  Lowell,  decided  in  1837, 
was  the  first  in  which  the  doctrine  of  dedication  of  a  high- 
way was  adopted  in  that  State.  In  1846  a  statute  (chap. 
204)  was  passed,  declaring  that  "  No  way  hereafter  opened 
and  dedicated  to  tlie  public  use  shall  become  chargeable 
upon  any  city  or  town,  unless  laid  out  in  a  manner  pre- 
scribed by  statute.      The  general  statutes  adopt  this  pro- 

1  Clements  v.  West  Troy,  16  Barb.  251,  253. 

2  Curtiss  I'.  Hoyt,  19  Conn.  154;  Noyes  v.  Ward,  19  Conn.  250,  2G5.  See 
also,  in  New  Jersey,  Holmes  v.  Jersey  City,  1  Beasl.  299  ;  and,  in  Louisiana, 
David  V.  2d  Municipality,  14  La.  Ann.  872. 

2  Holmes  v.  Jersey  City,  1  Beasl.  299,  See  David  v.  2d  Municipality,  14  La. 
Ann.  872. 


204  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cii.  I. 

vision,  and  also  declare  that  a  mere  grading  of  a  street,  in 
pursuance  of  an  order  of  the  officers  of  a  city  or  town,  shall 
not  be  construed  a  dedication  of  the  same  to  the  public  use.^ 
The  case  of  Jennings  v.  Tisbury,^  before  cited,  was  one 
where  the  way  had  become  public  by  prescription,  and  in 
Hayden  v.  Attleborough,^  the  court  held  the  town  liable, 
they  having,  without  any  formal  dedication  of  the  way, 
treated  it  as  such,  and  assumed  to  work  and  repair  it  as  a 
highway. 

But  in  Bowers  v.  Suffolk  Manufacturing  Company,*  the 
court  were  inclined  to  deny  that  a  way  could,  after  the  stat- 
ute of  1846,  become  a  public  one  by  dedication.  And  in 
Morse  v.  Stocker,^  the  court  use  this  language :  "  No  way 
or  street  could  be  made  a  public  way  by  merely  throwing  it 
open  to  the  public,  or  permitting  the  public  to  use  it,  with- 
out tlie  assent  of  the  public  authorities,  and  its  ac- 
[*150]  ceptance  *by  them  as  a  street ;  and  this  assent  and 
acceptance,  after  the  statute  of  1846,  could  only  be 
given  by  laying  out  the  street  according  to  the  ordinary 
mode  prescribed  by  law." 

And  in  Gurney  v.  Ford,  where  there  was  a  public  high- 
way near  a  mill,  and  out  of  this  a  lateral  way  led  across  the 
stream,  around  the  mill,  and  back  again  into  the  public  way, 
which  people  were  accustomed  to  use  in  going  to  the  mill, 
and  when  the  highway  in  that  place  was  out  of  repair,  and 
when  they  wished  to  water  their  horses  at  the  stream,  it  was 
held  not  to  have  become  a  highway,  the  town  never  having 
done  anything  to  it  as  such.^ 

34.  But  the  limitation  of  the  power  of  dedicating  lands 
to  public  uses  in  Massachusetts,  under  the  statute,  as  well 

1  Hol)hs  V.  Lowell,  19  Tick.  405  ;  Mass.  Gen.  Stat.,  chap.  43,  §§  82,  86. 

2  Jennings  v.  Tisbury,  5  Gray,  73. 

3  Hayden  v.  Attleborougli,  7  Gray,  338.  See  also  Wright  v.  Tukey,  3  Gush. 
295. 

*  Bowers  v.  Suffolk  Mg.  Go.,  4  Gush.  332,  340. 

6  Morse  v.  Stocker,  I  Allen,  150.     Sec  Durgin  v.  City  of  Lowell,  3  Allen,  398. 

^  Gurney  v.  Ford,  2  Allen,  576. 


Sect  5.]  EASEMENTS   BY   DEDICATION.  205 

as  in  otlicr  states,  seems  to  be  confined  to  ways,  and  is 
adopted  for  the  purpose  of  avoiding  tlie  liability  to  which 
towns  might  otherwise  be  subjected  in  case  of  a  want  of  re- 
pair of  such  ways.  But  the  law  remains,  it  would  seem,  as 
at  common  law,  in  respect  to  public  squares  and  other  sub- 
jects of  dedication. 

35.  And  it  may  be  added,  that,  as  to  ways,  it  is  not  com- 
petent for  the  public  to  make  them  public  without  their 
being  located  by  proper  authority,  and  thereby  to  impose 
duties  and  burdens,  in  respect  to  the  same,  upon  the  land- 
owners, by  a  mere  use  of  them  against  the  intention  of  sucli 
land-owners  to  dedicate  the  same.  Thus,  where  the  public 
were  accustomed  to  go  over  the  land  of  a  corporation  which 
had  constructed  a  private  way  for  the  accommodation  of  the 
dwelling-liouses  of  their  operatives,  and  a  person  travelling 
through  the  same  sustained  an  injury  from  an  alleged  want 
of  repair,  it  was  held  that  the  city  was  not  liable  therefor.^ 
So,  where  the  public  were  in  the  habit  of  going  across  an- 
other's land  to  shorten  the  distance  of  the  neighbor- 
ing highway,  but  in  so  doing  were  *trespassers,  the  [*151] 
same  being  against  the  wishes  of  the  land-owner,  it 
was  held  that  the  public  had  not,  by  these  successive  tres- 
passes, acquired  such  a  right  of  way  over  said  land,  that,  if 
the  owner  have  occasion  to  dig  a  pit  in  his  land,  and  a  per- 
son passing  over  the  same  were  to  fall  into  it,  he  could  have 
an  action  to  recover  damages  occasioned  by  such  injury .^ 

And  where  the  owner  of  land  in  a  city  laid  out  a  street 
over  it,  and  sold  house-lots  thereon,  but  did  not  dedicate  the 
same  to  the  public,  nor  had  the  public  used  it  but  a  part  of 
the  distance,  on  account  of  obstructions  therein,  but  had 
been  permitted  for  many  years  to  pass  over  a  part  of  it,  and 
the  officers  of  the  city  undertook  to  order  the  grade  of  the 
street  under  the  stat.  1853,  chap.  135,  and  to  require  the  own- 
ers of  the  street  to  cause  the  same  to  be  made,  it  was  held  that 

1  Durgin  v.  City  of  Lowell,  3  Allen,  398. 

2  Stoue  c.  Jackson,  16  C.  B.  199  ;  Commonwealth  v.  Fisk,  8  Mete.  238. 


206  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.        [   [Cu.  I. 

the  act  was  unconstitutional,  inasmuch  as  the  owners  had  a 
right  to  use  their  land  as  they  saw  fit,  in  a  manner  not  inju- 
rious to  others ;  and  permitting  it  to  he  used  by  the  public 
did  not  make  it  public  property,  since  it  was  a  mere  license, 
revocable  at  pleasure.^ 

So  in  TVoodyer  v.  Hadden,  the  owner  of  the  land  opened 
a  cul  de  sac  from  a  public  street  in  a  city,  upon  which  ho 
built  houses  on  each  side,  and  the  same  was  closed  at  one 
end  by  a  fence  between  his  and  the  land  of  an  adjoining 
owner ;  and  this  had  been  opened  in  this  state  for  twenty- 
one  years,  and  had  had  houses  upon  it  for  nineteen  years, 
when  the  latter  owner  removed  this  fence  so  as  to  open  thd 
cul  de  sac  into  a  way  across  his  land.  It  was  held  not  to  be 
a  way  dedicated  to  the  public  use,  because  the  evidence 
showed  that  such  was  not  the  intention  of  the  owner  when 
he  opened  it.^ 

36.  "Without  attempting  further  to  lay  down  any 
[*152]  general  *rules  whereby  to  distinguish  between  a  pub- 
lic use  by  license,  and  a  dedication  of  ways,  public 
squares,  and  the  like,  the  following  cases  may  be  referred  to 
as  illustrations  from  which  these  rules  may  be  drawn  in  their 
application  to  particular  cases.  Thus  it  is  said  :  "  To  lay  off 
a  road  through  one's  plantation,  and  for  his  own  convenience, 
cannot  be  construed  into  a  dedication  of  it  to  public  use. 
If  it  has  become  a  public  market-road,  or  even  if  he  had 
permitted  a  church  or  other  public  buildings  to  be  built  at 
the  end  of  the  avenue,  it  might  have  admitted  of  that  con- 
struction." ^ 

37.  In  Gowen  v.  Philadelphia  Exchange  Co.,  Gibson,  C. 
J.,  while  commenting  upon  the  difference  between  a  dedica- 
tion and  a  license,  and  whether  the  one  construction  or  the 
other  should  be  ascribed  to  the  fact  of  leaving  an  open  space 

1  Morse  V.  Stocker,  1  Allen,  150;  Mass.  Gen.  Stat.,  chap.  43,  §  85. 

2  Woodycr  v.  Iladdcn,  5  Taunt.  125.  See  Woolr.  Ways,  11.  People  v. 
Jackson,  7  Midi.  432  ;  Tillman  v.  People,  12  Mich.  400  ;  Hoklanc  v.  Trustees, 
23  Barb.  103.     But  see  Wi;.'gens  v.  Tallmadge,  11  Barb.  457. 

8  Witter  V.  Harvey,  1  M'Cord,  67. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  207 

before  one's  premises  which  is  accessible  to  the  public,  refers 
to  cases  where  it  has  been  held  that,  by  opening  a  street 
which  is  closed  at  one  end,  the  owner  indicates  decisively 
that  it  is  not  intended  to  be  a  thoroughfare.  And  he  adds  : 
"  There  are  a  thousand  circumstances  connected  with  a 
man's  calling  which  imply  a  license  to  enter  his  premises, 
subject  to  his  regulation  and  control.  The  publican,  the 
miller,  the  broker,  the  banker,  the  wharfinger,  the  artisan, 
or  any  professional  man  whatever,  licenses  the  public  to  enter 
his  place  of  business,  in  order  to  attract  custom.  But  when 
the  business  is  discontinued,  the  license  is  at  an  end.  It  is 
a  license  which  is  dependent  on  the  use  of  property  to  which 
it  is  annexed,  and  which  cannot,  without  permission  of  the 
owner,  be  annexed  to  anything  else."  And  it  was  accord- 
ingly held,  that  a  piece  of  land  left  open  for  the  accommoda- 
tion of  the  owner  was  not  thereby  dedicated  to  the  public.^ 

On  the  other  hand,  where  the  owner  of  a  narrow  strip  of 
land,  lying  between  the  highway  and  the  enclosed 
land  of  a  *third  party,  suffered  this  strip  to  lie  uncn-  [*153] 
closed,  it  was  held  to  be  so  far  a  dedication  of  it  to 
the  public,  that  an  action  would  not  lie  for  passing  over  it 
against  a  stranger,  as  otherwise  it  would  serve  as  a  trap  to 
the  traveller.^ 

38,  In  the  case  of  New  Orleans  v.  United  States,  the  dedi- 
cation was  of  a  quay  along  the  bank  of  the  river,  on  which 
goods  were  landed  from  vessels.  It  was  held  that,  not  only 
was  the  quay  dedicated  to  the  use  of  the  city,  but  that  it  car- 
ried with  it,  and  embraced  within  such  dedication,  the  grad- 
ual increment  by  alluvion  formed  by  the  river.  It  was  also 
held  that,  where  public  land  had  been  dedicated  by  the  gov- 
ernment to  a  public  use,  it  was  withdrawn  from  commerce  ; 
and  so  long  as  it  continued  to  be  thus  used,  it  could  not  be- 
come the  property  of  an  individual.^ 

1  Gowen  v.  Philadelphia  Exchange  Co.,  5  "Watts  &  S.  143. 

2  Cleveland  v.  Cleveland,  12  Wend.  172. 

.3  New  Orleans  v.  United  States,  10  Pet.  662,  712  ;  Kector  v.  Hartt,  8  Mo.  457  ; 
Commonwealth  v.  Alburger,  1  Whart.  469,  485. 


208  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

But  the  public  have  no  highway  along  the  margin  of  the 
navigable  rivers  and  lakes  in  New  York,  unless  the  same 
shall  have  been  acquired  by  express  grant  or  prescription. ^ 

39.  In  State  v.  Trask,  a  deed  had  been  made  by  a  grantor 
to  individuals  who  were  empowered  to  convey  the  premises 
to  the  county,  to  be  used  as  a  yard  or  green  for  the  State 
and  county  buildings.  It  was  held  that  this  deed  was  evi- 
dence of  an  intent  to  dedicate  the  land  to  public  use,  and  it 
did  not  require  a  second  deed  to  the  county  to  effectuate 
this ;  that  if  such  second  deed  had  been  made,  and  the 
county  had,  by  deed,  relinquished  the  land,  it  would  not 
have  defeated  the  dedication,  —  a  dedication  to  the  public 
being  in  its  nature  irrevocable.  "  All  that  seems  necessary," 
say  the  court,  "  is  that  the  owner  shall  clearly  manifest  an 
intention  to  dedicate  the  land  to  public  use,  and  that  the 
public  should,  relying  upon  that  manifestation,  have  entered 
into  the  use  and  occupation  of  it,  in  such  manner  as  renders 

it  unjust  and  injurious  to  reclaim  it It  is  not  only 

necessary  that  there  be  some  act  of  dedication  on  the  part  of 
the  owner,  but  there  must  also  be  something  equivalent  to 

an  acceptance  on  the  part  of  the  public Towns 

[*154]   *and  cities  may  be  projected,  streets,  public  squares, 

and  roads  may  be  laid  out ;  but  if  no  town  or  city 
is  built,  there  is  no  effectual  dedication."  It  was  held  fur- 
ther, that  there  might  be  a  partial  acceptance  of  what  had 
been  dedicated,  and  beyond  such  partial  acceptance  the  dedi- 
cation would  be  defeated.^ 

40.  In  the  case  of  Abbott  v.  Mills,  the  dedication  was  of 
a  public  square  left  in  a  village,  around  which  the  inhabi- 
tants had  built  their  houses  ;  and  it  was  held  a  sufficient 
dedication,  that  the  proprietors  of  the  town  had  exhibited 
such  a  square  upon  the  plan  of  the  town,  and  had  suffered 
persons  to  go  on  and  incur  expense  in  erecting  their  houses, 

1  Ledyard  v.  Ten  Eyck,  36  Barb.  127. 

2  State  V.  Trask,  6  Vt.  3.5.5,  364,  367  ;  Commonwealth  v.  Fisk,  8  Mctc.  238, 
243,  244.  See  Noyes  v.  Ward,  19  Conn.  250  ;  Oswald  v.  Grcnci,  22  Texas,  94'; 
Cincinnati  v.  Wiiite,  6  Put.  431. 


Sect.  5.]  EASEMENTS   BY   DEDICATION.  209 

although  they  had  not  marked  off  the  same  by  monuments 
upon  the  ground,  and  they  were  accordingly  prohil)ited  from 
making  use  of  the  land  for  purposes  inconsistent  with  its  use 
as  a  public  square.^ 

And  it  was  held,  in  the  above  cases  from  the  Vermont  re- 
ports, that  "  the  enjoyment  of  a  public  highway,  square,  com- 
mon, or  other  common  privilege  or  immunity,  for  a  period 
short  of  fifteen  years  (the  period  of  limitation),  may  afford 
conclusive  evidence  of  a  right  so  to  do."  ^ 

41.  The  subject  of  dedication  of  lands  to  public  uses  is 
fully  considered  in  Hunter  v.  Trustees  of  Sandy  Hill,  by  the 
court  of  New  York,  in  which  several  of  the  cases  above  cited 
are  referred  to.  "  Lands,"  say  the  court,  "  may  be  dedi- 
cated for  pious  and  charitable  uses,  as  well  as  for  public 
ways,  commons,  and  other  easements  in  the  nature  of  ways, 

so  as  to  conclude  the  owner  who  makes  the  dedication 

A  dedication  may  be  made  without  writing,  by  act 
in  pais,  *as  well  as  by  deed.  It  is  not  at  all  ncces-  [*155] 
sary  that  the  owner  should  part  with  the  title  which 
he  has,  for  dedication  has  respect  to  the  possession,  and  not 
the  permanent  estate.  Its  effect  is  not  to  deprive  a  party  of 
his  land,  but  to  estop  him,  while  the  dedication  continues  in 
force,  from  asserting  that  right  of  exclusive  possession  and 
enjoyment  which  the  owner  of  property  ordinarily  has. 
Where,  as  in  the  case  of  a  highway,  the  public  acquire  but 
a  mere  right  of  passage,  the  owner,  who  makes  the  dedica- 
tion, retains  a  right  to  use  the  land  in  any  way  compatible 
with  the  full  enjoyment  of  the  public  easement."  ^ 

But  if  he  or  any  other  person  put  obstructions  in  such  way 
as  renders  the  travelling  over  it  unsafe,  he  who  placed  them 

1  Abbott  V.  Mills,  3  Vt.  521  ;  State  v.  Catlin,  3  Vt.  530  ;  Pomeroy  v.  Mills,  3 
Vt.  279;  State  v.  Wilkinson,  2  Vt.  480;  Cincinnati  v.  White,  6  Pet.  431; 
Cady  V.  Conger,  19  N.  Y.  256;  Doe  v.  President,  &c.  of  Attica,  7  lud.  641; 
Commonwealth  v.  Rush.  14  Penn.  St.  186. 

-  Abbott  V.  Mills,  3  Vt.  521  ;  State  v.  Catlin,  3  Vt.  530. 

3  Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill,  41 1  ;  Tallmadge  v.  E.  Eiver  Bank, 
26  N.  Y.  108  ;  Dubuque  v.  Malony,  9  Iowa,  455,  456. 
14 


210       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.     [Ch.  I. 

• 

there  would  be  liable  in  damages  to  any  one  who  should  re- 
ceive an  injury  while  passing  over  it  with  proper  care.^ 

But  if  there  be  an  erection  or  excavation  existing  in  the 
way,  when  it  is  dedicated,  the  owner  is  not  liable  for  acci- 
dents thereby  occasioned.  The  public  accept  the  way  sub- 
ject to  the  inconvenience  or  risk  arising  from  the  existing 
state  of  things.^ 

42.  Though  the  doctrine  of  the  case  above,  of  Trustees 
of  "Watcrtown  v.  Cowen,-^  may  be  considered  as  settling  the 
respective  rights  of  the  owner  of  the  soil  of  such  a  street 
or  square,  and  of  those  who  may  have  built  houses  or  pur- 
chased lots  bounding  upon  the  same,  it  docs  not  seem  to 
cover  the  question  how  far  the  public  can  be  made  respon- 
sible for  the  safe  condition  of  such  streets,  when  used  by 
others  for  the  general  purposes  of  a  way  or  thoroughfare. 

In  one  case  in  England,  Baylcy,  J.  held  tliat  tliere  might 
be  a  dedication  of  a  way  to  the  public  by  the  land-owner, 
and  yet  the  public  not  be  liable  for  the  repair  of  the  same  ; 
and  that  to  make  a  parish  liable  for  repairs  of  a  way,  there 
must  have  been  some  act  of  acquiescence  or  adoption  of  it  as 
a  public  way  on  their  part.* 

Whatever  may  be  the  rule  of  law  applicable  to  the 
[*156]  cases  *above  supposed,  it  seems  to  be  now  settled 
that  the  proper  authority  to  take  charge  of  what  has 
thus  been  actually  dedicated  is  the  local  corporate  body 
within  which  the  same  is  situate,  having  charge  of  similar 
interests,  and  this  from  the  incapacity  of  an  indefinite  entity 
like  "  the  public  "  to  manage  or  take  care  of  the  same.^ 

A  question  of  this  kind  came  up  in  respect  to  a  public 
square  in   Philadelphia,  which  Penn  had  dedicated  to  the 

1  Corby  V.  Hill,  4  C.  B.  n.  S.  556. 

2  i'islier  V.  Prowse,  2  B.  &  Smith,  770;  Robins  v.  Jones,  C.  B.     26  Law  Rep. 
291. 

■^  Trustees  of  Watertown  v.  Cowen,  4  Paige,  510. 

*  The  King  v.  St.  Benedict,  4  Barncw.  &  Aid.  449.     See  Ilobbs  v.  Lowell,  19 
Pick.  405. 

6  2  Smith,  Lead.  Cas.,  5th  Am.  cd.  222. 


Sect.  5.]  EASEMENTS   BY    DEDICATION. 


211 


city.  It  was  held  that,  after  such  a  dedication,  the  owner 
of  the  soil  could  not  grant  away  an  exclusive  right  to  any 
part  of  it.  Nor  could  any  length  of  occupation  destroy  the 
right  of  the  public,  in  the  absence  of  positive  statute,  short  of 
a  strict  prescription.  "  Public  rights  cannot  be  destroyed 
by  long-continued  encroachments ;  at  least,  the  party  who 
claims  the  exercise  of  any  right  inconsistent  witli  the  free 
enjoyment  of  a  public  easement  or  privilege  must  put  him- 
self on  the  ground  of  prescription,  unless  ho  has  a  grant  or 

some  valid  authority  from  the  government When 

property  is  dedicated  or  transferred  to  public  use,  the  use 
is  indefinite,  and  may  vary  according  to  circumstances.  The 
public  being  unable  themselves  to  manage  or  attend  to  it, 
the  care  and  employment  of  it  must  devolve  upon  some  local 
authority  or  body  corporate  as  its  guardian,  who  are  in  the 
first  place  to  determine  what  use  of  it,  from  time  to  time,  is 
best  calculated  for  the  public  interest,  subject,  as  charitable 
uses  are,  to  the  control  of  the  laws  and  the  courts,  in  case  of 
any  abuse  or  misapplication  of  the  trust.  The  corporation 
has  not  the  right  to  these  squares,  so  as  to  be  able  to  sell 
them,  or  emjiloy  them  in  any  way  variant  from  the  object 
for  which  they  were  designed."  ^ 

43.  It  was  held  that,  where  a  township  had  been  laid  out 
by  a  plan  showing  streets,  landing-place,  &c.,  and 
the  lots  *were  sold,  it  constituted  a  dedication  of  [*157] 
these  to  the  public.  Yet  where  an  individual  en- 
closed a  part  of  the  land  thus  dedicated,  and  held  exclu- 
sive possession  of  the  same  for  twenty  years,  he  gained  a 
valid  prescriptive  title  to  the  same.^ 

So  where  an  owner  had  dedicated  a  lot  of  land  to  a  town, 
in  a  manner  recognized  by  the  law  of  Missouri,  and  after- 
wards sold  the  same  to  one  who  enjoyed  it  long  enough  to 

1  Commonwealth  v.  Alburger,  1  Wliart.  469,  485.  Sec  Commonwealth  v. 
Rush.  14  Penn.  St.  186;  Trustees  of  Watertown  v.  Cowen,  4  Paige,  510;  Du- 
buque V.  Malony,  9  Iowa,  460. 

2  Alves  V.  Town  of  Henderson,  16  B.  Monr.  1.31,  172;  Rowan  v.  Portland,  8 
B.  Monr.  232 ;  Knight  v.  Heaton,  22  Verm.  480. 


212  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  I. 

gain  a  prescriptive  right,  under  ordinary  circumstances,  it 
was  held  that  the  town  was  thereby  barred  of  any  rights 
gained  by  dedication.^ 

So  where  the  public  forebore  to  use  what  was  dedicated 
as  a  way,  for  the  term  of  twenty-five  years,  and  in  the  mean 
time  the  grantees  of  the  land  continued  to  occupy  it  exclu- 
sively, it  was  held  that  the  public  had  lost  their  right  in  the 
premises.2 

1  Callaway  Co.  v.  Nolley,  31  Misso.  393. 

2  Baldwin  i-.  Buffalo,  29  Barb.  396 ;  Commissioners,  &c.  v.  Taylor,  2  Bay, 
292. 


'5=CHAPTER    II.  [*158] 

EASEMENTS  AND   SERVITUDES   OF  WAY. 

Skct.  1.  "Ways  defined,  and  how  they  affect  the  Right  of  Freehold. 

Sect.  2.  Of  Ways  of  Necessity. 

Sect.  3.  Of  Ways  created  by  Grant. 

Sect.  4.  IIow  Ways  may  be  used. 

Sect.  5.  Rights  of  the  Owners  of  the  Land  and  of  the  Way,  in  the  Land. 

SECTION  I. 

WAYS  DEFINED,  AND  HOW  THEY  AFFECT  THE  EIGHT  OF  FREEHOLD. 

1.  Rights  of  servitude  do  not  affect  general  rights  of  property. 

2.  Rights  of  laud-owners  in  the  soil  of  highwaj-s. 

5.  Of  ways,  and  their  several  classes. 
4.  Divisions  of  ways  in  the  civil  law. 

6.  Ways  v^hen  in  gross  and  when  appendant,  &c. 

1.  Passing  from  the  modes  in  which  easements  may  be 
acquired,  to  the  rules  which  apply  to  the  several  classes 
into  which  they  are  divided  in  reference  to  the  subject- 
matters  to  which  they  relate,  it  may  be  remarked,  that  the 
existence  of  a  servitude  upon  an  estate  does  not  affect  the 
general  rights  of  property  in  the  same.  All  these  remain, 
subject  only  to  the  enjoyment  of  the  existing  easement. 
Thus  it  is  no  objection  to  the  owner  of  the  fee  maintaining 
a  writ  of  entry  against  one,  that  he  has  an  easement  of  a 
right  of  way  over  the  demanded  premises.  The  rights  are 
independent,  and  each  owner  may  have  an  appropriate  ac- 
tion to  vindicate  or  establish  his  right, —  the  one  to  pro- 
tect his  seizin,  the  other  to  prevent  the  disturbance  of  his 


214  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.  [Cii.  II. 

[*159]  *casement  without  having  any  right  to  recover  the 
land  itself  in  a  real  action.^  And  yet  it  has  been 
held,  in  Pennsylvania,  that  the  existence  and  exercise  of  a 
private  way  over  granted  premises,  is  an  eviction,  pro  tanto, 
so  far  as  to  be  the  ground  of  an  action  upon  the  covenant  of 
ivarraniy  in  a  deed.^ 

2.  Highways,  for  instance,  are  regarded  as  easements. 
The  public  acquire,  by  their  location,  a  right  of  way,  with 
the  powers  and  privileges  incident  to  that  right,  such  as  dig- 
ging the  soil,  using  the  timber  and  other  materials  found 
within  the  limits  of  the  road,  in  a  reasonable  manner,  for 
the  jDurpose  of  making  and  repairing  the  road  and  its  bridges. 
The  former  proprietor  of  the  soil  still  retains  his  exclusive 
right  in  all  the  mines,  quarries,  springs  of  water,  timber, 
and  earth,  for  every  purpose  not  incompatible  with  the  pub- 
lic right  of  way.  The  person  in  whom  is  the  fee  of  the  road 
may  maintain  trespass,  or  ejectment,  or  waste,  in  respect  to 
the  same.  And  upon  the  discoutinuance  or  abandonment 
of  the  right  of  way,  the  entire  and  exclusive  property  and 
right  of  enjoyment  revest  in  the  proprietor  of  the  soil.^ 

And  this  doctrine  extends  to  railroads  as  well  as  high- 
ways.^ But  the  language  of  Story,  J.  on  this  subject,  is  as 
follows :  "  Where  a  highway  is  made  over  another  man's 
land,  the  soil  still  remains  in  the  owner  subject  to  the  ease- 
ment.    If  there  are  trees  on  it  they  are  his.     If  it  be  neces- 

1  Morgan  v.  Moore,  3  Gray,  319  ;  Hancock  v.  Wentwortli,  5  Mete.  446  ;  Jer- 
man  v.  Mathews,  2  Bail.  271;  Atkins  v.  Bordman,  2  Mete.  457;  Winslow  v. 
King,  14  Gray,  321  ;  Miller  v.  Miller,  4  Pick.  244  ;  Perley  v.  Chandler,  6  Mass. 
454;  Pomeroy  v.  Mills,  3  Vt.  279  ;  Matter  of  Seventeenth  Street,  1  Wend.  262; 
Viner,  Abr.,  Chiinin  Private,  B. ;  Underwood  v.  Carney,  I  Cush.  292 ;  O'Linda 
V.  Lothrop,  21  Pick.  292 ;  Green  v.  Chelsea,  24  Pick.  71 ;  Lade  v.  Shepherd,  2 
Strange,  1004;  Jackson  v.  Hathaway,  15  Johns.  447;  Westbrook  v.  North,  2 
Me.  179 ;  Maxwell  v.  M'Atee,  9  B.  Monr.  20. 

2  Wilson  V.  Cockran,  46  Penn.  233. 

^  Jackson  v.  Hathaway,  15  Johns.  447  ;  Westbrook  v.  North,  2  Me.  179;  Eob- 
bins  ;;.  Borman,  1  Pick.  122;  Adams  v.  Emerson,  6  Pick.  57;  Harback  v.  Bos- 
ton, 10  Cush.  295;  Harris  v.  Elliott,  10  Peters,  55;  Hollenbcck  v.  Eowley,  8  Al- 
len, 473;  Lyman  v.  Arnold,  5  Mason,  198. 

^  Blake  V.  Kicii,  34  N.  H.  282  ;  Quimby  v.  Verm.  Cent.  11.  R.,  23  Verm.  387. 


Sect.  1.]  WAYS   DEFINED.  215 

sary  to  cut  them  and  remove  them  in  order  to  make  the 
highway,  still  tlie  proi)erty  in  tlie  trees  so  cut  down  is  un- 
changed."^ If  tlie  adjacent  owner  of  lands  enclose  a  portion 
of  the  higliway  by  a  fence,  and  keep  the  same  so  enclosed  for 
forty  years,  under  a  claim  of  right,  he  thereby  acquires  a 
right  to  maintain  his  occupation  as  against  the  public.'-^ 

And  the  owner  of  the  soil  may  maintain  an  action  of  eject- 
ment against  any  one  who  shall  erect  a  permanent  structure 
upon  the  soil  of  a  higliway  or  public  landing-place,  to  the 
exclusion  of  the  public  and  the  owner.'^ 

The  proprietors  of  West  Boston  Bridge,  however,  acquired 
the  fee  of  the  land  conveyed  to  them,  though  created  a  cor- 
poration for  the  construction  and  maintenance  of  a  public 
bridge.'^ 

*  3.  One  of  the  most  common  class  of  easements  [*160] 
or  servitudes  known  to  the  law  is  that  of  Wat/s,  or 

the  right  of  one  man  to  pass  over  the  land  of  another  in  some 
particular  line.  "  A  way,  ex  vi  termini,  imports  a  right  of 
passing  in  a  particular  line."^ 

And  it  seems  that  A  could  not  claim  a  way  from  one  part 
of  B's  land  to  another  part,  over  B's  land,  though  he  may 
claim  such  way  from  one  part  of  his  own  land,  over  B's,  to 
another  part  of  his  own.^ 

These  ways  are  of  various  kinds,  though  classed  into  four 
by  Mr.  Woolrych,  in  his  treatise  upon  the  subject,  to  wit : 
Foot-ivays ;  Foot-ivaijs  and  Horse-ioays ;  Foot,  Horse,  and 
Carriag-e-ways;  and  Drift-ivays? 

1  Lyman  v.  Arnold,  5  Mason,  198.  This  is  regulated  by  statute  in  Massachu- 
setts. Such  trees  are  forfeited  if  not  removed  by  the  owner  in  a  prescribed  time. 
Gen.  St.  c.  4.3,  §  13. 

2  Cutter  V.  Cambridge,  6  Allen,  20.  See  Fox  v.  Hart,  11  Ohio,  414;  Knight 
v.  Heaton.  22  Verm.  480. 

3  Gardiner  v.  Tisdale,  2  Wise.  153;  Goodtitle  v.  Alker,  1  Burr.  133;  Blake  v. 
Rich,  34  N.  H.  284  ;  Barclay  v.  Howell,  6  Peters,  498. 

*  Harlow  v.  Rogers,  12  Cush.  291. 

5  Jones  V.  Percivai,  5  Pick.  485;  Jennison  v.  Walker,  11  Gray,  426. 

6  Staple  V.  Hcydon,  6  Mod.  3. 

7  Co.  Litt.  56  a  ;  Woolr.  Ways,  1. 


216      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cu.  II. 

A  grant  of  "  a  way  "  over  one's  premises  will  be  under- 
stood to  be  a  general  way  for  all  purposes.^  A  "  carriage- 
way "  always  includes  a  "  foot-way,"  ^  So  it  does  a  "  horse- 
way," but  not  a  "  drift-way."  ^  A  "  drift-way  "  is  a  common 
way  for  driving  cattle,  and  was  held  to  intend  a  way  fur  the 
passage  of  teams.*  A  right  to  "  lead  "  manure  is  a  right  to 
carry  it  in  a  cart,  since  "leading"  implies  "drawing  in  a 
carriage."  And  a  way  "  on  foot,  or  for  horses,  oxen,  cattle, 
and  sheep,"  does  not  give  one  a  right  to  carry  manure  in  a 
wheelbarrow,  although  he  who  wheels  it  travels  on  foot.^  A 
"  way  of  necessity  "  extends  only  to  a  single  track  or  way.^ 
And  where  one  grants  a  right  of  way  across  his  land,  he  may 
shut  the  termini  of  the  same  by  gates,  which  the  grantee 
must  open  and  close  when  using  the  same,  unless  an  open 
way  is  expressly  granted.'' 

4.  The  division  of  ways,  by  the  civil  law,  was  into 
[*161]  Iler^  *  Actus,  and  Via;  —  Iter  being  a  way  on  foot 
or  horseback,  over  another  man's  land,  to  one's  own  ; 
Actus,  a  right  of  walking,  riding,  driving  cattle  or  a  cart, 
over  another  man's  land,  though  sometimes  it  did  not  in- 
clude the  right  of  driving  a  cart  or  wagon.  Via,  sometimes 
called  Aditus,  answered  to  a  highway,  including  the  right  of 
walking,  riding,  driving  cattle,  carts,  and  the  like.  One 
having  an  iter  had  not  an  actus,  but  he  who  had  an  actus 
had  also  an  iter ;  and  a  via  included  an  iter  and  an  actus.^ 

5.  A  way  is  an  incorporeal  hereditament,  and  consists  in 
the  right  of  passing  over  another's  ground.     It  may  arise 

1  Warner  v.  Green,  Com.  114. 

2  Davies  v.  Stepliens,  7  Carr.  &  P.  570. 

3  Ballard  r.  Dyson,  1  Taunt.  279,  per  Ueath,  J, 
*  Smith  V.  Ladd,  41  Maine,  320. 

5  Brnnton  v.  Hall,  1  Q.  B.  792. 

c  M'Donald  r.  Lindall,  3  Rawle,  492. 

7  Maxwell  r.  M'Atce,  9  B.  Monr.  20 ;  Bean  v.  Coleman,  44  N.  H.  539,  544 ; 
Bakeman  v.  Talbot,  31  N.  Y.  366;  post,  pp.  *186,  *195. 

^  Ayl.  Pand.  307  ;  Inst.  2,  3.  For  the  different  classes  of  ways  known  to  the 
French  law,  their  width,  and  how  they  may  be  used,  see  1  Fournel,  Traite  du 
Voisinagc,  233,  ^  88. 


Sect.  1.]  WAYS   DEFl^'ED.  217 

either  from  grant,  necessity,  or  prescription,  and  is  either  in 
gross  or  appendant  to  land.  By  prescription,  a  grant  is  im- 
plied, as,  if  all  the  owners  and  occupiers  of  such  a  farm 
have  immemorially  used  to  cross  another's  ground,  such 
usage  supposes  an  original  grant  of  the  right.  A  right  of 
way  may  be  in  gross,  that  is,  attached  to  the  person  using  it, 
or  appurtenant  to  land,  but  a  way  is  never  presumed  to  be 
in  gross  when  it  can  fairly  be  construed  to  be  appurtenant  to 
land.i 

But  the  grant  of  a  way  across  a  man's  land  conveys  no 
right  to  the  soil,  rocks,  or  other  things  within  the  bounds  of 
the  way.^ 

Ways  are  said  to  be  appendant  or  appurtenant  when  they 
are  incident  to  an  estate,  one  terminus  being  on  the  land  of 
the  party  claiming.  They  must  inhere  in  the  land,  concern 
the  premises,  and  be  essentially  necessary  to  their  enjoyment. 
They  are  of  the  jiature  of  covenants  running  with  the  land, 
and  like  them  must  respect  the  thing  granted  or  demised, 
and  must  concern  the  land  or  estate  conveyed.  A  way 
appendant  cannot  be  turned  into  one  in  gross,  because  it  is 
inseparably  united  to  the  land  to  which  it  is  incident. 
So  a  way  in  gross  *cannot  be  granted  over  to  an-  [*162] 
other,  because  of  its  being  attached  to  the  person.'^ 
Nor  can  one  have  a  private  way  over  and  along  a  public 
highway.'^ 

In  the  foregoing  definition  of  a  way,  borrowed  from  the 
language  of  the  court  of  Pennsylvania,  the  usual  classifica- 
tion of  modes  is  retained,  by  which  ways  may  be  created, 
though  it  is  hardly  necessary  to  repeat,  that,  when  analyzed, 
they  resolve  themselves  into  simple  grants,  the  difference 
consisting  in  the  character  of  the  proof,  and  not  in  the  mode 

1  Case  of  Private  Road,  1  Ashm.  417;  Garrison  v.  Eudd,  19  111.  558;  Der- 
rickson  v.  Springer,  5  Harringt.  21. 

2  Smith  V.  Rome,  19  Giv.  91  ;  Jamaica  Pond  v.  Chandler,  9  Allen,  164.  See 
Lyman  v.  Arnold,  5  Mason   198. 

3  Garrison  v.  Rudd,  19  111.  558,  565. 

*  State  V.  Jefcoat,  11  Rich.  529.  * 


218       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  II. 

itself.  For  the  sake  of  convenience,  however,  ways  of  neces- 
sity will  be  treated  of  as  a  class  by  themselves,  and  will  be 
considered  before  the  nature,  character,  and  extent  of  enjoy- 
ment of  different  kind  of  ways  shall  be  illustrated  or  ex- 
plained. 


SECTION   II. 

OF   WAYS   OF   NECESSITY. 

1.  Waj's  of  necessity  only  exist  over  lands  of  grantors. 

2.  In  what  cases  ways  of  necessity  exist. 

3.  Same  rule,  if  grantor  reserves  "a  way  of  necessity." 

4.  Such  ways  exist  only  so  long  as  the  necessity  continues. 

5.  Effect  of  owning  adjoining  land  with  a  private  right  of  way. 

6.  Executor  may  by  grant  create  a  way  of  necessity  over  his  own  land. 

7.  A  tenant  in  common  cannot  create  a  way  over  common  land. 

8.  Eights  of  way  over  parcels  of  land  not  dependent  on  priorit}-  of  grant. 

9.  Whether  a  v/ay  passes,  dependent  on  state  of  the  premises. 
10.  Who  is  to  designate  the  course  of  a  way  of  necessity. 

1.  A  WAY  of  necessity  can  only  be  created  over  one  of  two 
parcels  of  land  of  which  the  grantor  was  the  owner  when 
the  same  was  conveyed  or  reserved  ;  and  it  arises  in 
[*163]  favor  of  *such  parcel  when  the  same  is  wholly  sur- 
rounded by  what  had  been  the  grantor's  other  land, 
or  partly  by  this  and  partly  by  that  of  a  stranger.^  This 
arises  from  the  effect  of  the  grant  or  reservation  of  the  land 
itself,  and  it  is  so  far  appurtenant  to  it  as  to  pass  with  the 
land  to  another,  provided  he  have  no  other  way  of  access  to 
the  same.^ 

1  N.  Y.  Life  Ins.  &  Tr.  Co.  v.  Milnor,  1  Barb.  Ch.  3.53,  366  ;  Collins  v.  Pren- 
tice, 1.5  Conn.  39  ;  1  Wms.  Saund.  323,  note;  Brice  v.  Bandall,  7  Gill  &  J.  349  ; 
Marshall  v.  TrunibiiU,  28  Conn.  183;  Kimball  v.  Cochcco  R.  R.,  7  Fcst.  449. 
Sec  Trask  v.  Patterson,  29  Me.  499  ;  Tracy  v.  Atherton,  3.5  Verm.  52. 

2  Clarke  v.  Rugj^e,  2  Rolle,  Abr.  60;  Woolr.  Ways,  21;  Jorden  v.  Atwood, 
Owen,  121 ;  Howton  v.  Frcarson,  8  T.  R.  50;  Lawton  v.  Rivers,  2  M'Cord,  445; 
Nichols  V.  Luce,  24  Pick.  102;  Proctor  v.  Hodgson,  10  Exch,  824;  White  v. 
Lecson,  5  Ilurlst.  &  N.  53 ;  Wissler  v.  Hershcy,  23  Penn.  St.  333. 


Sect.  2.]':;  WAYS    OF   NECESSITY.  219 

2.  It  would  be  simply  absurd  under  the  common  law  to 
pretend  that  A  could,  by  any  form  of  grant,  create  a  servi- 
tude upon  the  land  of  a  stranger  in  favor  of  land  which  he 
should  convey  to  his  grantee.^  But  l)oth  by  the  civil  codes 
of  France  and  Louisiana,  one  whose  lands  cannot  be  reached 
from  a  highway,  except  by  passing  over  the  lands  of  another 
person,  may  pass  in  the  shortest  feasible  distance  over  such 
third  person's  land,  paying  him  an  indemnity  therefor.^  And 
as  to  the  question,  what  constitutes  a  necessity  sufficient  to 
raise  an  implied  grant  of  a  right  of  way,  some  courts  have 
been  inclined  to  hold  that  it  need  not  be  absolute  and  irre- 
sistible, and  that  a  mere  inconvenience  may  be  so  great  as  to 
raise  such  an  implication.^  But  the  same  court  held,  in 
another  case,  that  where  the  land  conveyed  was  surrounded 
on  all  sides  but  one  by  water,  and  there  was  no  access  to  it 
by  land  except  over  the  grantor's  land,  it  was  not  such  a 
necessity  as  to  raise  an  implied  grant  of  a  right  of  way  over 
this  land,  and  that  mere  convenience  was  not  the  test.*  And 
the  law  seems  to  be  now  settled  beyond  controversy,  that,  in 
the  language  of  the  court  in  M'Donald  v.  Lindall :  "  The 
right  of  way  from  necessity  over  the  land  of  another 
is  always  of  *strict  necessity,  and  this  necessity  must  [*164] 
not  be  created  by  the  party  claiming  the  right  of  way. 
It  never  exists  where  a  man  can  get  to  his  property  through 
his  own  land.  That  the  way  through  his  own  land  is  too 
steep  or  too  narrow,  does  not  alter  the  case.  It  is  only 
where  there  is  no  way  through  his  own  land  that  the  right  of 
way  over  land  of  another  can  exist.  Tliat  a  person  claiming 
a  way  of  necessity  has  already  one  way,  is  a  good  plea,  and 
bars  the  plaintiff."^     A  way  of  necessity,  ex  vi  termini,  im- 

1  2  KoUc,  Abr.  60,  pi.  18  ;  1  Wms.  Saund.  323  b,  note;  Billiard  v.  Harrison, 
4  Maule  &  S.  387 ;  Woolr.  Ways,  21  ;  Tracy  v.  Atherton,  35  Verm.  52. 

2  Martin  i'.  Patin,  16  Louis.  57  ;  Code  Nap.  §§  682  -  685. 

8  Lawton  v.  Rivers,    2    M'Cord,   445;   Morris  v.  Edgington,  3   Taunt.  230. 
But  sec  Screven  v  Gregorie,  8  Eich.  158,  convenience  not  sufficient. 

*  Turnbnll  r.  Rivers,  3  M'Cord,  131.     See  also  Cooper  v.  Manpin,  6  Mo.  624 ; 
Anderson  v.  Buchanan,  8  Ind.  132. 

M'Donald  i-.  Lindall,  3  Rawle,  492;  Com.  Dig.   Chimin,  D.  4;    Staple  v. 


220  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cii.  II. 

ports  a  right  of  passage  through  the  lands  of  another  as  being 
indispensable. 1  Nor  can  one  claim  a  way  by  necessity  be- 
cause of  its  superior  convenience  over  another  way  which  he 
has.2 

Or,  as  stated  by  another  class  of  cases,  a  right  of  way  exists 
only  where  the  person  claiming  it  has  no  other  means  of 
passing  from  his  estate  into  the  public  street  or  road.^ 

The  same  rule  applies  where  the  grantor  conveys  land  sur- 
rounding a  parcel  retained  by  him  ;  he  has  a  way  of  necessity 
over  the  granted  land  to  the  parcel  retained.^ 

3.  Nor  would  the  rights  of  a  grantor  be  any  more  exten- 
sive or  different,  though  by  the  terms  of  his  deed  he  reserved 
to  himself  "  a  way  of  necessity."  ^ 

4.  And  so  limited  is  the  right  of  way  of  necessity  in  re- 
spect to  its  duration,  that,  though  it  remains  appurtenant 

to  the  land  in  favor  of  which  it  is  raised  so  long 
[*165]  as  *the  owner  thereof  has  no  other  mode  of  access, 

yet  the  moment  the  owner  of  such  a  way  acquires, 
by  purchase  of  other  land  or  otherwise,  a  way  of  access  from 
a  highway  over  his  own  land  to  the  land  to  which  the  way 
belongs,  the  way  of  necessity  is  at  an  end ;  or  in  other 
words,  a  way  of  necessity  ceases  as  soon  as  the  necessity 
ceases.  The  necessity  limits  the  duration  of  the  grant,  and 
this  applies  as  well  to  a  subsequent  owner  of  the  estate  to 
which  such  way  attaches,  as  to  the  first  grantee  in  whose 

Heydon,  6  Mod.  1  ;  Seabrook  v.  King,  1  Nott  &  M'C.  140;  Kimball  v.  Cocheco 
R.  R.,  7  Fost.  448 ;  Leonard  v.  Leonard,  2  Allen,  .543  ;  Trask  v.  Patterson, 
29  Me.  499 ;  Ogden  v.  Grove,  38  Penn.  St.  487 ;  Hall  v.  M'Leod,  2  Mete.  Ky. 
98. 

1  Hyde  V.  Jamaica,  27  Verm.  460. 

2  Dodd  V.  Burchell,  1  H.  &  Colt.  122;  Pheysey  v.  Vicary,  16  M.  &  W.  496, 
per  Alderson. 

8  Gayctty  v.  Bethune,  14  Mass.  49 ;  Grant  v.  Chase,  17  Mass.  443  ;  Smyles  v. 
Hastings,  5^2  N.  Y.  217  ;  Collins  v.  Prentice,  15  Conn.  39;  Hyde  v.  Jamaica,  27 
Yt.  443. 

*  Clark  V.  Coggc,  Cro.  Jac.  170;  Brigham  v.  Smith,  4  Gray,  297;  Seymour 
V.  Lewis,  13  N.  J.  444 ;  White  v.  Bass,  7  II.  &  Norm.  732. 

6  Viall  V.  Carpenter,  14  Gray,  126. 


Sect.  2.]  WAYS   OF   NECESSITY.  221 

favor  it  was  originally  raised.  It  is  not  enough  that  it  con- 
tinues to  be  a  way  of  convenience,  if  it  ceases  to  be  indis- 
pensable as  a  means  of  access  to  the  land.^ 

5.  It  would  not  be  enough,  however,  that  one  having  such 
way  of  necessity  should  acquire  a  parcel  of  land  adjoining 
that  to  which  such  way  belongs,  to  which  there  is  access  by 
a  prescriptive  right  of  way,  since  the  owner  of  such  a  way 
could  only  use  it  as  a  means  of  access  to  the  particular 
parcel  to  which  it  is  appurtenant.^ 

6.  A  right  of  way  will  be  raised  between  the  parties  to 
the  transfer  of  one  of  two  or  more  estates  or  parts  of 
estates,  where  the  part  granted  or  retained  can  be  reached 
only  over  the  other  part ;  and  this  not  only  applies  to  cases 
at  levies  of  executions  upon  parts  of  an  estate,  but  has  been 
held  to  extend  so  far,  that,  if  one  as  an  executor  sells  land 
to  which  there  is  no  means  of  access  except  over  his  own 
land,  the  purchaser  may  pass  over  the  executor's  land  to 
that  which  he  has  purchased.  So  if  an  executor,  in  the 
execution  of  his  trust  to  sell  lands  of  his  testator,  sell  a 
front  lot  to  one,  and  then  a  rear  lot  to  another,  the 
*latter  may,  if  necessary,  pass  over  the  front  lot  to  [*16G] 
reach  that  in  the  rear  of  it.^     So  if  a  creditor  levy 

his  execution  upon  his  debtor's  land  in  such  a  mode  that  it 
is  necessary  to  pass  over  the  part  levied  upon,  in  order  to 
reach  the  other  parts  of  the  estate,  a  right  of  way  over  the 
same  at  once  attaches  to  the  other  parts.*     But  not  if  there 

1  Pierce  v.  Selleck,  18  Conn.  321  ;  Holmes  v.  Seely,  19  Wend.  507;  Collins 
V.  Prentice,  1.5  Conn.  39;  Morris  v.  Edgington,  3  Taunt.  23;  Lawton  v.  Rivers, 
2  M'Cord,  445;  Viall  v.  Carpenter,  14  Gray,  126;  Holmes  v.  Goring,  2  Bing. 
76,  83 ;  New  York  Life  Ins.  &  Tr.  Co.  v.  Milnor,  1  Barb.  Ch.  353 ;  Nichols  v. 
Luce,  24  Pick.  102;  Staple  v.  Heydon,  6  Mod.  1  ;  White  v.  Leeson,  5  Hurlst. 
&  N.  53;  Seelcy  v.  Bishop,  19  Conn.  128;  Gayetty  v.  Bethune,  14  Mass.  49 
Woolr.  Ways,  72. 

2  New  York  Life  Ins.  &  Tr.  Co.  v.  Milnor,  1  Barb.  Ch.  353. 

3  Collins  V.  Prentice,  15  Conn.  39;  Howton  v.  Frearson,  8  T.  R.  50;  Woolr. 
Ways,  20. 

*  Russell  V.  Jackson,  2  Pick.  574;  Pernam  v.  Wead,  2  Mass.  203;  Taylor  v. 
Townsend,  8  Mass.  411. 


222  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Ch.  II. 

is  a  way  left  from  the  highway  to  the  back  land  which  might 
be  rendered  feasible  at  no  disproportionate  cost.^ 

7.  But  this  would  not  give  one  tenant  in  common  a  right 
to  create  an  easement  of  way  over  the  common  estate  to  land 
sold  by  him  belonging  to  himself  alone. ^ 

8.  In  determining  whether,  as  between  two  or  more 
parcels,  a  right  of  way  exists  in  favor  of  one  over  the 
other,  as  a  way  of  necessity,  it  does  not  depend  upon  the 
order  or  priority  of  the  conveyances.  Thus,  suppose  lots  A, 
B,  and  C  lying  in  the  above  order,  A  lying  in  front,  and  B 
being  accessible  only  over  A,  and  C  only  over  A  and  B, 
all  of  which  originally  belonged  to  the  same  owner,  and  it 
cannot  be  shown  whether  the  one  or  the  other  was  granted 
first.  It  would  make  no  difference  in  the  result,  for  if  it 
was  C,  a  right  of  way  was  thereby  created  in  its  favor  over 
A  and  B,  and  would  pass  therewith,  so  long  as  it  remained 
one  of  necessity.  If  it  was  B,  then,  by  the  principle  hereto- 
fore stated,  a  right  of  way  was  thereby  reserved  to  the 
grantor  from  A  over  B  to  C,  and  wo\ild  pass  as  appvirtenant 
to  those  lots  so  long  as  the  necessity  continued,  so  that  the 
same  rights  in  favor  of  one  over  the  other  of  said  parcels 
exist,  irrespective  of  the  priority  or  order  of  the  conveyance 

of  the  parcels,^ 
[*167]       *9.  And  whether  a  way  passes  as  one  of  necessity, 

with  the  parcel  of  land  to  which  it  may  have  be- 
longed, depends  upon  the  condition  of  the  estate  at  the  time 
of  the  conveyance.  Thus,  wdiere  there  were  two  parcels  of 
land,  upon  one  of  which  there  had  once  been  a  barn  to 
which  there  was  a  way  of  necessity  over  the  other  parcel, 
and  the  owner  of  the  estate  suffered  the  barn  to  go  wiiolly 
to  decay,  it  was  held  that  the  right  of  way  over  the  other 

1  Allen  V.  Klncaia,  11  Me.  155. 

2  Collins  V.  Prentice,  15  Conn.  39;  Gayetty  r.  Betluine,  14  Mass.  49 ;  Mar- 
Bhall  V.  Trumbull,  28  Conn.  183;  Brico  f.  Randall,  7  Gill  &  J.  349;  1  Wins. 
Saunrl.  323,  note. 

«  rinnington  v.  Galland,  9  Exch.  1  ;  "White  v.  Bass,  7  II.  &  Norm.  732. 


Sect.  1.]  WAYS    OF   NECESSITY.  223 

parcel  of  land  thereby  became  extinct,  and  ceased  to  be 
appurtenant  to  it.^ 

10.  In  respect  to  who  shall  designate  the  way  which  is  to 
be  used  by  the  grantee,  where  it  is  claimed  as  a  way  of  ne- 
cessity, it  would  seem  that,  if  a  way  had  been  in  use  for  the 
benefit  of  such  parcel  before  its  conveyance,  it  would  be 
understood  that  tlie  same  would  be  to  be  continued  if  rea- 
sonably convenient.^  But  if  it  is  to  be  designated  anew, 
it  seems  that  the  right  of  selecting  the  place  over  which 
it  shall  be  used  lies  with  the  owner  of  the  land  over  which 
it  is  to  pass,  provided,  upon  request,  he  shall  designate  it  in 
a  reasonable  manner,  and  he  may  so  do  it  as  to  be  least 
inconvenient  to  himself.-^  But  if  the  owner  of  the  land  fail 
to  designate  such  a  way  when  requested,  the  party  who  has 
the  right  to  use  it  may  select  a  suitable  route  for  the  same, 
having  regard  to  the  interest  and  convenience  of  the  owner 
of  the  land  over  which  it  passes.  And  when  he  has  once 
selected  the  way,  he  may  not  change  it  at  will,  but  must  be 
confined  to  the  way  thus  selected.'*  And  in  this  respect  it 
seems  the  law  differs  between  ways  claimed  by  ne- 
cessity and  *those  claimed  by  grant,  where  there  is  [*168] 
no  designation  made  of  the  particular  part  of  the 
tenement  in  which  it  is  to  be  exercised.  In  the  latter  case, 
the  selection  is  left  to  the  owner  of  the  dominant  tenement, 
but  he  must  not  make  such  a  selection  as  would  unnecessa- 
rily occasion  detriment  to  the  servient  tenement.  And  the 
same  rule  would  apply  to  aqueducts,^ 

1  Gayetty  v.  Bethune,  14  Mass.  49  ;  M'Donald  v.  Lindall,  3  Rawle,  492. 

2  Pinnington  v.  Galland,  9  Exch.  1. 

8  Capers  v.  Wilson,  3  M'Cord,  1,70;  Russell  v.  Jackson,  2  Pick.  .574  ;  Holmes  t*. 
Secly,  19  Wend.  507  ;  2  Rollc,  Abr.  60,  pi.  17  ;  Smiles  v.  Hastings,  24  Barb.  44  ; 
Pearson  v.  Spencer,  1  B.  &  Smith,  584. 

*  Nichols  V.  Luce,  24  Pick.  102 ;  Morris  v.  Edgington,  3  Taunt.  23 ;  Holmes 
V.  Seely,  19  Wend.  507. 

There  are  rules  in  the  French  law  as  to  which  of  several  adjoining  estates,  one  . 
having  a  right  of  way,  by  necessity,  from  a  highway  to  a  parcel  ofland  surround- 
ed by  the  lands  of  others,  shall  pass  over.    It  is  not  a  matter  of  mere  election  on 
his  part.     2  Fournel,  Traitc  du  Voisiuage,  301. 

5  3  Burge,  Col.  &  F.  Law,  441. 


224  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  11. 

Where  the  grantor  of  land,  who  had  reserved  a  right  of 
way  over  it  within  certain  limits,  opened  it  in  a  direction  not 
authorized  by  the  reservation,  and  he  was  enjoined  from 
using  it,  it  was  held  he  might  make  a  new  designation  of  the 
way.i 

SECTION  III. 
OF  WAYS   CREATED   BY   GRANT. 

1.  Ways  may  be  created  by  express  or  constructive  grant. 

2.  How  far  grants  of  ways  affected  by  ways  in  use. 

3.  0' Linda  v.  Lothrop.     Grantor  estopped  to  deny  a  way. 

4.  Effect  on  private  rights  of  discontinuing  a  liighway. 

5.  Smyles  v.  Hastings.     Rigtit  of  way  created  by  plans  of  premises. 

6.  Child  V.  Chappell.     Easements  passing  on  partition  of  estates. 

7.  Effect  of  bounding  land  by  a  contemplated  street. 

S.  When  bounding  by  a  street  conveys  a  right  of  way  in  it. 

9.  How  far  bounding  by  a  street  implies  any  width  thereof. 

10.  Osborn  v.  Wise.     How  far  parol  may  explain  what  is  granted. 

11.  Emerson  v.  Wiley.     Constructive  grant  of  a  general  waj'. 

12.  Hartshorn  v.  South  Reading.     General  grant  limited  by  nature  of  use. 

13.  White  V.  Leeson.     Case  of  way  not  passing,  though  on  a  plan. 

14.  Morris  v.  Edgington.     Two  ways  used  by  grantor,  ivhich  passes. 

15.  Kirkham  v.  Sharp.     Grantor  of  way  limited  to  same  use  as  grantee. 

16.  Salisbury  v.  Andrews.     State  of  premises  defines  way  granted. 

17.  Lewis  V.  Carstairs.     Way  for  one  purpose  may  not  be  extended. 

18.  How  far  a  way  passes  with  the  several  parts  of  an  estate. 

19.  Grant  of  a  right  of  maintaining  a  bridge,  held  to  be  of  a  right  of  way 

1.  In  considering  the  subject  of  ways  created  by  grant,  it 

chiefly  remains,  after  having  treated  already  of  what 

[*169]  will  pass  *by  implication,  with  the  principal  thing 

granted,  to  state  and  apply  the  rules  which  courts 

have  adopted  for  limiting  and  defining  the  nature,  use,  and 

•  extent  of  such  ways  as  pass  by  grants  of  lands  with  which 

they  are  to  be  enjoyed.     These  may  be  defined  by  the  express 

terms  of  tlie  deed  by  which  they  are  created,  or  they  may  be 

•ascertained  Ijy  construction,  having  reference  to  the  state 

and  condition  of  the  principal  estate  granted. 

1  Hart  V.  Conner,  25  Conn.  331. 


Sect.  3.]  WAYS   CREATED   BY   GRANT.  225 

2.  As  a  general  proposition,  a  grant  of  an  estate  with 
"  ways  heretofore  used,"  or  "  ways  in  use,"  or  the  like, 
would  pass  all  existing  ways  in  actual  use  at  the  time, 
whether  the  same  are  used  by  the  grantor  over  other  parts 
of  his  own  estate,  and  so  are  not  properly  appurtenant  to  such 
granted  parcel,  or  are  appurtenant  to  the  same,  by  having 
been  in  use  over  the  land  of  another.^  But  a  mere  reference 
in  the  deed  to  an  intended  way,  without  an  express  grant, . 
will  not  pass  such  way.^  And  where  a  right  of  way  is 
granted,  but  its  locality  and  duration  are  not  defined,  it  may 
become  fixed  by  use  and  acts  of  acquiescence  of  the  parties. 
And  where  there  are  two  ways  which  will  answer  the  descrip- 
tion in  the  grant,  the  grantor's  declaration  may  be  admitted 
as  evidence  as  to  which  was  intended.-^  And  when  once 
fixed  by  user,  it  may  not  be  changed  except  by  a  sufficiently 
long  acquiescence  therein  by  the  parties  in  interest.^  And 
this  applies  to  an  aqueduct  as  well  as  a  way.''"'  And  if  the 
deed  granting  the  way  deffnes  its  course,  &c.,  it  is  not  to  be 
controlled  by  parol  testimony  as  to  what  the  parties  intended, 
or  to  contradict  the  terms  of  the  grant.*^ 

But  where  both  j^rties  claimed  under  one  remote  grantor 
and  grantee,  and  the  question  was  as  to  the  width  of  the 
way,  reference  was  had  to  the  deed  of  the  original  grantor, 
who  created  it." 

3.  Among  the  numerous  illustrations  which  are  to  be 
found  in  decided  cases,  of  ways  passing  either  by  being  re- 
ferred to  in  deeds  and  taking  effect  by  way  of  estoppel,  or  by 

1  Plant  V.  James,  5  Barnew.  &  Ad.  791  ;  Harding  v.  Wilson,  2  Barnew.  &  C. 
96  ;  Staple  v.  Heydon,  6  Mod.  I. 

2  Harding  v.  Wilson,  2  Barnew.  &  C.  96  ;  Roberts  t;.  Ivarr,  1  Taunt.  495. 

3  French  v.  Hayes,  43  N.  H.  32  ;  Osborn  v.  Wise,  7  C.  &  P.  761. 

*  Bannon  v.  Angler,  2  Allen,  128  ;  Wynkoop  v.  Burger,  12  Johns.  222  ;  French 
V.  Hayes,  43  N.  H.  32  ;  Osborn  v.  Wise,  7  C.  &  P.  761 ;  Jennison  v.  Walker,  1 1  Gray, 
426  ;  Jones  v.  Percival,  5  Pick.  487. 

*>  Jennison  i\  Walker,  11  Gray,  426. 

^  Shepherd  v.  Watson,  1  Watts,  35  ;  Ballard  v.  Dyson,  1  Taunt.  279,  288. 

^  Brown  v.  Stone,  10  Gray,  65. 
15 


226  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cir.  II. 

having  been  laid  down  upon  plans  used  by  the  parties,  or  by 
having  been  actually  in  use  when  the  grant  of  the  principal 

estate  was  made,  are  the  following. 
[*170]        *In   O'Linda  v.  Lothrop,  the  grantor,  owning  a 

parcel  of  land,  sold  the  north  part  of  it,  and  bounded 
the  part  sold  on  the  south  by  an  intended  street  where  none 
existed,  and  sold  the  south  part,  bounding  it  north  by  a  street. 
Nothing,  however,  was  said  in  the  deed  of  a  right  of  way 
over  the  street.  But  it  was  held  that  the  grantor  was  es- 
topped to  deny  that  it  was  a  street  or  way  to  the  extent  of  the 
land  so  referred  to.  It  was  an  implied  covenant  on  his  part 
that  there  was  such  a  street.^ 

But  in  the  case  above  stated,  had  there  been  an  existing 
way  a  part  of  the  length  of  the  line  of  the  granted  premises, 
but  not  the  whole  of  it,  it  would  be  considered  as  limiting 
the  grant  to  the  existing  way,  and  not  as  extending  the 
covenant  as  to  the  way  to  the  whole  length  of  line  of  the 
premises.^ 

4.  So  where  one  sells  land  bounding  it  upon  the  highway, 
and  the  same  is  discontinued  by  act  of  law,  although  the  same 
reverts  to  the  owner  of  the  fee  of  the  soiWthe  grantor  as  such, 
in  such  a  case,  would  have  no  right  to  deprive  his  grantee  of 
the  right  to  use  the  discontinued  road  for  the  purposes  of  a 
way.'^ 

5.  In  order  to  a  partition  of  a  common  estate,  a  plan  was 
prepared  of  the  premises,  and  of  the  several  parcels  into 
which  it  was  to  be  divided,  and  in  the  deeds  of  partition 
reference  was  made  to  the  plan.  Upon  this  plan  a  street  or 
road  was  laid  down,  upon  which  one  of  the  lots  was  bounded, 
and  to  which  there  was  no  other  mode  of  access  from  a  pub- 
lic highway,  except  over  the  lands  of  third  persons.  It  was 
held  that  the  right  of  way  as  thus  laid  down  became  appurte- 

1  O'Linda  v.  Lotlirop,  21  Pick.  292;  Tufts  i;.  Cliarlestown,  4  Gray,  537; 
Parker  v.  Smith,  17  Mass.  413  ;  Howe  v.  Alger,  4  Allen,  206. 

2  Parker  v.  Smith,  17  Mass.  413  ;  Parker  v.  Framingham,  8  Mete.  2G0. 
8  Parker  v.  Framingham,  8  Mete.  260. 


Sect.  3.]  WAYS    CREATED    BY    GRANT.  227 

nant  to  the  lot  thus  hounded,  and  passed  with  it  as  a  proper 
appurtenance.^ 

*6.  The  case  of  Child  v.  Chappcll,  already  cited,  [*171] 
may  serve  to  illustrate  more  than  one  of  the  forego- 
ing propositions.  In  that  case,  three  tenants  in  common  of 
one  hundred  acres  of  land,  adjoining  falls  in  a  river,  made 
partition  of  it  by  deed,  by  a  plan  annexed  to  it,  showing  a 
mill-yard,  mill-races,  water,  and  alleys,  which  were  to  be  en- 
joyed for  their  common  use  forever.  Five  years  after,  by 
another  partition  deed,  reciting  the  former  one,  they  laid  out 
new  lots  upon  a  part  of  the  "  mill-yard,"  altered  some  of  the 
lines,  and  made  a  new  division  of  these  lots.  It  was  mutu- 
ally covenanted  that  a  basin  should  be  made  on  the  annexed 
plat  upon  a  part  of  the  mill-yard,  which  was  to  be  common 
property  of  the  parties,  their  heirs  and  assigns.  The  road 
was  to  be  forever  kept  open  as  a  common  way  to  the  mills, 
to  the  basin,  and  to  the  warehouses  adjoining  the  same.  The 
plaintiff  purchased  one  of  these  lots,  and  the  defendant 
another,  from  the  original  grantees  in  the  partition  deed. 
It  was  held  that  the  undivided  parts  of  the  estate  became  a 
servient  tenement  to  the  several  parcels  divided  and  sold, 
and  the  easement  and  privilege  of  the  way,  the  basin,  &c., 
became  permanently  annexed  to  the  lots.  The  act  of  laying 
out  these  basins  and  ways,  and  selling  one  of  the  lots  to  the 
defendant  with  express  reference  to  the  deed  containing  the 
plan  and  covenants,  "  was  quoad  the  purchaser  and  the  land 
purchased  a  dedication  of  it  to  the  use  for  which  it  was  con- 
structed." Morse,  J.  considers  the  point  of  its  being  a 
dedication.  "  As  between  the  original  owner  of  the  land 
and  the  several  grantees  of  parcels  thereof,  these  rights  are 
fixed  ;  but  until  the  public  has  in  some  way  become  a  party 
to  the  transaction,. the  whole  arrangement  is  subject  to  be 
rescinded  by  the  joint  act  of  the  original  owner,  and  all  of 
those  who  own  and  have  the  right  to  represent  the  land  sold. 

1  Smylcs  r.  Hastings,  22  N.  Y.  217,  224  ;  s.  c,  24  Barb.  44.     Sec  Van  Meter 
V.  Hankinson,  6  Whart.  307. 


228  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  11. 

....  In  other  words,  there  might  be  impressed  upon  this 
mass  of  private  property,  by  private  contract,  rights  in  the 
strictest  sense  of  the  word  analogous  to  the  ordinary  public 

rights  of  highway,  and  yet  these  rights  confined  to 
[*172]    the  owners  and  *representatives  of  the  land  forming 

the  subject  of  the  compact,  and  liable  to  be  ended 
and  rescinded  by  the  mutual   consent  of  all  who  have  an 

interest  in  the   subject But  until  they  did  mutually 

agree  to  the  contrary,  the  mill-yard  remained  a  common  way, 
common  to  those  who  had  interests  in  the  mill-seat  lots  front- 
ing upon  it,  constituting  to  each  lot  an  easement  appurte- 
nant to  it,  not  by  prescription,  but  by  what  a  prescription 
implies,  a  grant."  ^ 

7.  But  where  land  was  bounded  upon  a  contemplated 
street  laid  down  upon  a  plat  of  village  or  city  lots,  and  the 
commissioners,  who  had  jurisdiction  of  the  matter,  prevent- 
ed its  being  opened,  it  was  held  that  the  purchaser  of  the  lot 
would  have  no  right  of  way  over  it,  if  he  has  another  con- 
venient way  of  access  to  his  lot.^ 

8.  In  Roberts  v.  Karr,  the  grantor  conveyed  a  parcel  of 
land  adjoining  a  new  way  over  his  own  land,  on  which 
houses  had  been  erected,  and  described  the  parcel  by  lines 
measured  by  feet  and  inches,  "  abutting  on  the  road  or 
street."  It  was  held  to  carry  with  it  a  right  of  access  to 
this  road  or  street  at  every  point  along  this  front.  Nor  was 
the  grantor  permitted  to  show,  by  parol,  that  the  line  intend- 
ed was  along  the  street  a  part  of  the  distance,  and  then 
along  a  narrow  space  of  land  between  the  granted  parcel 
and  the  road,  which  still  belonged  to  the  grantor,  although 
that  corresponded  with  the  admeasurement  and  lengths  of 
the  lines  mentioned  in  the  deed.  The  grantor  would  not  be 
admitted  to  deny  that  the  land  on  whicli  the  parcel  abuts  is 
the  road."^ 

1  Child  V.  ChappcU,  5  Seld.  246,  2.50,  260  ;  ante,  chap.  1,  sect.  .5,  pi.  22. 

2  Underwood  v.  Stiiyvcsaiit,  19  Johns.  181  ;  Bellinger  v.  Burial  Ground,  &c., 
10  Pcnn.  1.3.5. 

8  Roberts  v.  Kurr,  1  Taunt.  495. 


Sect.  3.]      .  WAYS   CREATED   BY    GRANT.  229 

In  the  case  above  cited,  the  way  in  respect  to  which  an 
implication  of  appiirtenancy  was  raised,  it  will  be  remem- 
bered, was  over  and  upon  the  land  of  the  grantor  himself. 
But  it  seems  not  to  be  entirely  clear  how  far  the 
*law  would  raise  a  covenant  that  the  use  of  such  a  [*173] 
way  existed  in  favor  of  the  granted  premises,  and 
might  be  enjoyed  with  them,  by  merely  bounding  the  same 
upon  it,  where  it  lies  over  the  land  of  another  person. 

The  question  came  up  in  Howe  v.  Alger,^  where  the  court 
held,  that  bounding  land  in  a  deed  upon  a  street  neither 
conveyed  any  right  of  way  in  the  street,  nor  was  it  a  cove- 
nant that  there  was  such  a  street,  if  the  grantor  had  no 
interest  in  the  soil  of  the  same.  If  he  owned  the  soil  of  the 
street,  and  bounded  land  by  it,  describing  it  as  a  street,  he 
would  be  estopped  to  deny  that  it  was  one,  or  that  his 
grantee  had  a  right  to  use  it. 

In  Maryland,  the  court  holds  that  if  one  grants  land  in  a 
city,  and  bounds  it  by  streets  designated  as  such  in  the 
conveyance,  or  on  a  map  made  by  the  city,  or  by  the  owner 
of  the  property,  such  sale  implies,  necessarily,  a  covenant 
that  the  purchaser  shall  have  the  use  of  such  streets.  The 
grantor  would  be  estopped  to  deny  that  there  was  such 
a  street  as  he  describes  in  his  deed.^ 

9.  In  Walker  v.  Worcester,  the  owner  of  a  large  tract  of 
land  laid  out  streets  upon  it  for  the  purpose  of  selling  house- 
lots  bounding  upon  the  same,  and  caused  a  plan  of  it  to  be 
made.  One  of  these  streets  was  called  "  Park,"  and  was 
laid  out  sixty  feet  wide.  He  then  sold  the  whole  land 
together,  and  his  grantee  made  a  fence  around  it,  enclosing 
it,  and  ploughed  and  cultivated  it.  He  then  sold  a  house- 
lot,  a  part  of  this  estate,  bounding  it  on  one  side  by  an 
existing  street,  and  "  westerly  on  Park  Street,  one  hundred 
and  fifty  feet."     The  owner  of  the  general  parcel  graded 

1  4  Allen,  206  ;  Matter  of  Mercer  Street,  4  Cow.  542. 

2  White  V.  Flannigain,  1  Md.  540,  542  Moale  v.  Mayor,  &c.  of  Baltimore,  5 
Md.  321. 


230  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  '        [Ch.  II. 

this  street  anew  and  reduced  it  to  forty  feet  in  width,  and 
sold  the  other  part  of  the  estate,  including  twenty  feet 
formerly  within  Park  Street,  to  the  defendants.  In  an 
action  for  preventing  the  purchaser  of  the  house-lot  passing 
over  the  whole  original  width  of  Park  Street,  the  court  held 
that,  in  order  to  constitute  a  street,  it  must  be  open  and 
appropriated,  and  adopted  by  the  public  or  the  owner  for 
purposes  of  travel,  so  that  a  person  passing  over  it,  Avhile  it 
was  op.en,  would  not  be  liable  for  a  trespass.  Though  once 
open,  if  closed  before  any  house-lots  were  sold,  the  deed 
amounted  to  an  implied  covenant  and  grant,  if  the  grantor 
owned  it,  that  the  grantee  should  have  the  right  to  a  con- 
venient street  or  passage-way.  But  there  was  nothing  to 
designate  or  limit  the  dimensions  of  the  way  thus  granted 
by  implication.  The  law  would  imply  a  way  necessary  and 
convenient  to  accommodate  the  grantee  in  the  use  of  the 
land  granted,  to  the  extent  granted  of  one  hundred  and  fifty 
feet.i 

10.  In  Osborn  v.  Wise,  there  was  a  grant  of  a 
[*174]  house,  with  *a  passage-way  ten  feet  wide  on  the  east 
side  of  the  premises,  with  a  reference  to  a  plan  which 
showed  a  passage-way  on  that  side,  but  of  only  five  feet  in 
width  in  parts  of  it,  and  it  did  not,  moreover,  all  pass  over 
the  grantor's  land.  The  grantee  claimed  a  way  running  in 
anotlicr  direction  wide  enough  for  a  carriage-way,  and  offered 
evidence  to  show  that  the  grantor  declared  the  road  was 
what  the  owner  of  the  estate  claimed  it  to  be.  The  court 
refused  the  evidence,  but  held  that  evidence  was  competent 
to  show  the  state  of  the  property  at  the  time  when  the  grant 
was  made,  and  that,  if  the  way  granted  was  of  no  use,  the 
grantee  had  a  way  of  necessity  over  the  grantor's  land  to 
the  nearest  public  highway  then  existing.  But  the  acts  of 
the  parties,  before  or  after  the  grant,  would  not  be  evidence 
of  what  was  granted. 

1  Walker  v.  Worcester,  6  Gray,  548.     See  Harding  v.  Wilson,  2  Barncw.  & 
C.  96. 


Sect.  3.]  WAYS   CREATED   BY   GRANT.  231 

The  deed  was  to  be  construed  by  the  state  of  the  premises 
when  the  grant  was  made.  Nor  docs  the  grant  that  carries 
with  it  a  right  of  way  of  necessity  necessarily  imply  a 
carriage-way,  even  though  the  thing  granted  be  a  house. 
But  the  grant  of  tillage-land  implies  a  carriage-way,  because 
such  a  way  is  necessary  in  order  to  carry  off  the  crops,  unless, 
by  the  custom  of  the  vicinage,  the  crops  are  carried  off  by 
men  instead  of  teams.  But  if  there  had  been  two  ways  on 
the  east  side  of  the  premises  answering  to  the  description  in 
the  deed,  parol  evidence  would  have  been  competent  to  show 
which  of  these  was  intended.^ 

11.  The  proptietors  of  a  town  voted  that  certain  land 
should  remain  unfenced,  among  other  things,  "  to  accommo- 
date the  neighbors  that  live  bordering  on  said  lands,  for  their 
more  convenient  coming  at  and  improving  their  own  lands 
and  buildings,  and  to  the  use  of  the  old  parish  and  neigh- 
borhood forever,"  <fec.  The  parish  granted  a  parcel  of  land, 
"bounded  all  round  by  the  land  given  by  the  town, 

to  the  first  parish,  &c.,  with  all  the  privileges  *there-  [*17o] 
to  belonging."     It  was  held  that  this  conveyed  to 
the  grantee  the  right  to  cross  this  open  land  in  all  directions, 
and  amounted  to  a  covenant  that  the  same  should  not  be 
enclosed  without  consent  of  the  owners  abutting  upon  it.^ 

12.  In  Hartshorn  v.  South  Reading,  the  subject  of  an 
easement  in  tlie  same  public  land  as  in  Emerson  v.  Wiley 
came  under  the  consideration  of  the  court.  The  plain- 
tiff's land  fronted  upon  the  common  land,  which  by  vote 
of  the  town  was  to  lie  unfenced  "  for  the  use  of  the  old 
parish,  for  highways,  a  training-field,  and  burying-place, 
and  the  more  common  coming  at  the  pond  with  flax  and 
creatures,  and  also  to  accommodate  the  neighbors  that  live 
bordering  on  said  lands,  for  their  more  convenient  coming 
at  and  improving  their  own  lands  and  buildings."  The 
town  enclosed  a   part   of  this   common,  and   the   plaintiff 

1  Osborn  v.  Wise,  7  Carr.  &  P.  761. 
'■^  Eincrson  v.  Wiley,  10  Pick.  310. 


232  THE    LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cii.  II. 

brought  his  action  because  he  was  thereby  deprived  of  a 
right  of  way  over  it,  and  over  every  part  of  it  in  all  direc- 
tions, which  he  claimed  was  appurtenant  to  his  land  under 
this  vote.  The  court  held,  in  the  first  place,  if  the  injury 
complained  of  was  of  the  same  nature  with  that  which  all 
persons  having  occasion  to  use  the  same  would  sustain, 
except  in  degree,  the  only  remedy  was  by  indictment,  and 
not  by  an  action  for  an  injury  to  a  private  easement.  In 
the  second  place,  the  uses  to  which  this  land  was  devoted 
by  the  original  action  of  the  town  were  distinct  and  sepa- 
rate, some  necessarily  of  a  public  character,  to  be  controlled 
by  the  public  authorities.  These  are  to  be  used  by  indi- 
viduals and  the  public  so  as  to  be  consistent  with  each 
other.  The  public  could  not  use  the  common  directly  in 
front  of  the  plaintiff's  land  for  a  burying-ground,  so  as  to 
prevent  access  to  the  same  by  him ;  and,  on  the  other  hand, 
if  a  burying-ground  were  allotted  upon  a  part  of  it,  the 

plaintiff  would  have  no  right  to  travel  over  or  among 
[*1T6]    the  *graves  and  monuments,  or  drive  his  cattle  over 

these.  The  extent  of  his  right  as  owner  of  the  land 
which  belonged  to  him  was  that  of  passage  over  so  much  of 
the  common  as  was  reasonably  sufficient  for  coming  to  his 
lands  and  buildings,  and  for  access  to  the  pond.  And  as  the 
evidence  did  not  show  that  the  enclosure  complained  of  ob- 
structed these,  it  was  held  that  the  action  of  the  plaintiff 
could  not  be  sustained.^ 

13.  In  White  v.  Leeson,  a  devisee  of  lands  was  authorized 
by  private  act  of  Parliament  to  lay  out  the  same  for  build- 
ing-lots, and  to  make  ways,  streets,  &c.,  "  for  the  general 
improvement  of  the  estate,  and  the  accommodation  of  the 
tenants  and  occupiers  thereof."  He  laid  out  the  lands  and 
made  certain  streets,  one  of  which  led  to  the  sea.  He 
then  granted  several  of  the  lots  to  the  defendant,  without 
mentioning  any  right  of  way,  and   granted   other   lots   to 

1  Hartshorn  v.   South  Iveatlin<,',  3  Allen,  .')02.     See  Brainard  v.  Connecticut 
River  R,  R.  Co.,  7  Cush.  506  ;   Harvard  College  v.  Stearns,  15  Gray. 


Sect.  3.]  WAYS   CREATED    BY    GRANT.  233 

others,  with  riglits  of  way  in  express  terms.  This  street  to 
the  sea  was  a  mere  private  way,  and  does  not  seem  to  have 
been  necessary  to  the  occupation  of  tlie  defendant's  lots. 
But  he  seems  to  have  claimed  the  right  to  use  it,  because 
it  was  laid  out  for  the  general  improvement  and  accommo- 
dation of  the  tenants  of  the  parcels  into  which  the  estate 
was  divided.  But  the  court  held  that,  being  a  mere  private 
way,  the  defendant  had  no  right  to  make  use  of  it  beyond 
what  had  been  expressly  granted  to  him.  The  judge,  Wat- 
son, B.  says:  "The  argument  for  the  defendant  would  go 
to  show  that,  if  a  square  of  large  houses  was  set  out  with  an 
enclosure,  all  the  tenants  must  have  a  right  to  walk  in  it, 
though  they  lived  in  cottages  at  a  distance." 

It  will  be  observed  that  no  question  of  dedication  or  neces- 
sity was  raised,  but  merely  of  the  construction  to  be  given 
to  the  deed  of  the  defendant,  taken  in  connection  with  the 
condition  of  the  property,  and  the  omission  to  grant  a 
*right  to  use  this  private  way  was  conclusive  that  it  [*177] 
did  not  pass  Avith  the  parcels  granted.^ 

This  sulijcct  is  thus  treated  of  by  Chancellor  Cottenham, 
in  Squire  v.  Campbell :  "  I  will  suppose  it  [plaintiff's  affida- 
vit] to  state  that  a  plan  was  shown  by  some  person  author- 
ized to  act  for  the  lessors,  and  that  the  plan  showed  a  space 
such  as  has  hitherto  existed."  (This  was  of  an  open  square 
in  which  defendant  proposed  to  erect  a  statue.)  "  This 
will  raise  the  question,  whether,  in  the  absence  of  all  fraud, 
mistake,  or  misapprehension,  the  mere  exhibition  of  the  plan 
of  property,  part  of  which  the  lessee  takes,  gives  such  lessee 
a  right  to  say  that  all  the  other  parts  of  the  property  exhib- 
ited upon  such  plan  shall  continue  during  his  lease  in  the 
same  state  in  which  it  was  exhibited  upon  the  plan ;  or,  if  it 
was  not  at  that  time  in  such  state,  shall  be  made  to  assume 
such  state,  and  to  have  the  assistance  of  this  court  to  enforce 
such  right,  the  lease  granted  to  each  lessee  being  wholly 
silent  as   to   any  provision   for   that  purpose This 

1  Wliite  V.  Leeson,  5  Hurlst.  &  N.  53. 


234:  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  [Cn.  II. 

proposition  ■would  evidently  lead  to  most  absurd  conse- 
quences. A  man  who  is  about  to  sell  a  corner  of  an  estate 
may  exhibit  a  plan  of  the  whole  estate,  in  order  to  show  the 
relative  position  of  that  part  which  he  is  about  to  sell ;  but 
is  he,  on  that  account,  to  have  his  hands  forever  tied  up  from 
the  enjoyment  and  use  of  all  other  parts  of  the  estate,  and  is 
he  to  preserve  it  in  exactly  its  present  state  ?  "  ^ 

14.  The  case  of  Morris  v.  Edgington,  though  somewhat 
complicated  in  its  facts,  may  serve  to  show  the  principles  of 
construction  which  courts  apply  in  determining  the  nature 
and  extent  of  a  way,  where  one  is  granted  but  not  defined. 
The  defendant  owned  an  estate  consisting  of  a  coffee-room, 
a  passage  east  of  this,  which  led  from  the  street  into  a  close 
yard,  in  which  carriers  deposited  goods,  entering  through 
this  passage.     East  of  the  passage  was  a  tap-room, 
[*178]   *and  over  the  passage  was  another  room.     There 
was  a  door  from  the  passage-way  into  the  tap-room, 
so  that  persons  could  go  directly  from  the  street  through  the 
passage-way  to  the  tap-room  by  this  door.     There  was  also  a 
door  from  the  street  into  the  coffee-room,  and  then  from  the 
coffee-room  into  the  passage,  so  that  one  could  reach  the  tap- 
room by  passing  from  the  street  through  the  coffee-room  and 
across  the  passage  to  the  door  of  the  tap-room,  although  the 
gate  between  the  street  and  the  passage-way  was  closed. 
The  defendant  let  to  the  plaintiff  the  coffee-room  and  tap- 
room, "  and  all  ways  to  the  demised  premises  belonging  and 
appertaining,"  reserving  the  yard  and  the  passage-way  to  the 
yard.     Soon  after  letting  the  premises,  the  defendant  closed 
the  gate  to  the  passage-way  after  seven  o'clock  in  tlie  even- 
ing, in  order  to  make  the  goods  deposited  in  the  yard  safe 
and  secure,  and  the  plaintiff  brought  his  action  for  this 
obstruction  of  his  way  to  the  tap-room  through  this  passage- 
way from  the  street.     The  defendant  insisted  that  the  way 
through   the  passage  was  not  one  of  necessity,  since  the 
tenant  had  another  way  through  the  coffee-room,  and  that 

2  Siiuirc  V.  Campbell,  1  Mylnc  &  C.  459,  478. 


Sect.  3.]  WAYS   CREATED   BY   GRANT.  235 

it  did  not  pass  as  appurtenant,  because,  so  long  as  the  entire 
estate  was  in  the  defendant's  hands,  there  could  properly  be 
no  such  thing  as  a  way  appurtenant  to  one  part  over  another. 
But  the  court  held  that,  though  neither  of  the  ways  was  in 
itself  a  way  of  necessity,  since  there  was  another  way  of 
access,  and  though,  technically,  neither  of  them  was  appurte- 
nant to  the  leased  premises,  yet  as  there  were  but  two  ways, 
and  one  of  them  must  have  been  intended  to  pass  by  the 
lease,  that  through  the  passage  was  to  be  taken  as  the  way 
intended,  by  reason  of  its  being  so  much  more  convenient 
for  the  accommodation  and  use  of  the  leased  premises.^ 

15.  The  facts  in  Kirkhani  v.  Sharp  are  still  more  compli- 
cated, but  the  case  is  referred  to  as  illustrating  the  manner 
in  which  the  general  owner  of  land  may  so  grant  a 
right  *of  way  over  it  as  to  restrict  himself  to  a  like  [*179] 
use  of  the  way,  although' there  is  nothing  in  his  deed, 
in  express  terms,  limiting  his  use  or  enjoyment  of  the  same. 
The  defendant's  grantor  owned  two  house-lots  forming  one 
estate,  fronting  west  on  Fourth  Street,  and  extending  back 
one  hundred  feet.  In  the  rear  of  these  lots  he  had  a  stable 
and  yard,  separated  from  the  house-lots  by  a  wall,  to  which 
he  had  a  way  by  an  alley  from  Market  Street,  which  ran  in 
a  direction  at  right  angles  with  Fourth  Street.  On  the 
north  of  these  house-lots  he  had  a  house  in  the  occupation  of 
A.  B.  He  conveyed  to  the  plaintiff's  grantor  one  of  these 
house-lots  bounding  him  on  the  west  by  Fourth  Street,  and 
also  "  the  full  and  free  privilege  and  authority  of  ingress, 
egress,  and  regress  by,  through,  and  upon  a  four-feet-six- 
inches  alley,  extending  in  and  about  forty-five  feet  from 
Fourth  Street,  to  be  forever  left  open  between  tlie  lot  hereby 
granted  and  the  house  now  occupied  by  A.  B.,*  (fee.  It  will 
be  per^ceived  that  the  way  was  over  the  soil  of  the  defend- 
ant's grantor,  and  that,  in  passing  from  the  end  of  tlic  forty- 
five  feet  to  the  stable  and  yard  in  rear  of  his  lot,  he  would 
pass  only  over  his  own  land.      The  defendant,  wishing  to 

1  Morris  v.  Edgington,  3  Taunt.  24;  ante,  chap.  1,  sect.  3,  pi.  14. 


236  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Cii.  II. 

pass  from  jNfarket  Street  through  his  stable  estate,  and  thence 
to  Fourth  Street,  extended  the  alley  above  described  over 
his  own  land,  and,  by  breaking  down  the  wall,  into  the  stable 
yard,  used  the  same  as  a  passage  way ;  for  doing  which 
the  plaintiff  brought  his  action.  The  court  sustained  it,  on 
the  ground  that,  by  the  terms  of  the  deed,  the  alley  was 
limited  to  forty-five  feet  in  depth,  and  the  grantor  had 
thereby  restricted  himself  from  extending  and  enlarging  its 
use.  "  The  ungranted  residue  of  a  right  of  way,"  say  the 
court,  "  may  be  annexed  to  a  particular  messuage  or  close, 
either  by  express  stipulation  or  necessary  implication,  accord- 
ing to  the  occasion  of  the  grant.  An  instance  of  this  might 
be  found  in  the  disposal  of  houses  surrounding  a  court  orig- 
inally destined  to  be  a  common  avenue  to  them,  in  which  it 
w^ould  be  sufficiently  obvious,  from  the  disposition  of 
[*180]  the  property,  that  the  right  *of  way  had  been  appended 
to  the  houses,  and  not  the  owner  of  them.  By  the  act 
of  laying  out  the  ground  as  a  court,  it  would  be  allotted  to 
the  houses  intended  to  adjoin  it,  so  as  to  pass  with  them  as 
an  appurtenance,  and^the  right  of  the  owner  would  be  cor- 
respondingly qualified  by  the  nature  of  the  use  to  which  it 
was  dedicated.  Sales  of  houses  would  successively  abridge 
it,  till  it  was,  ultimately,  extinguished  along  witli  his  prop- 
erty in  the  last  of  them,  when  the  purchasers  might,  by  com- 
mon consent,  bar  the  entrance  against  his  person,  notwith- 
standing his  legal  title,  just  as  they  might  bar  it  against  a 
stranger.  During  his  ownership  of  but  a  part  of  the  prop- 
erty, he  would  be  entitled  to  no  privilege  that  he  had  not 
originally  annexed  to  it,  nor  could  his  right  to  use  the  court, 
as  a  thoroughfare  to  a  messuage  or  close  adjoining  him  on  the 
farther  side,  fee  greater  than  that  of  his  grantees." 

In  applying  this  doctrine,  the  court  held  that,  as  the  way 
here  was  only  over  a  part  of  the  entire  length  of  the  lots, 
and  over  this  the  plaintiff  had  full  and  free  ingress  and 
regress,  there  was  an  implied  restriction  upon  tlie  owner  of 
the  other  parcel  to  be  accommodated  by  it,  that  a  similar 


Sect.  3.]  WAYS   CREATED   BY   GRANT.  237 

use  to  that  which  his  grantee  could  make  it,  should  only  be 
made  of  it  by  him,  and  therefore  the  grantor  could  not,  in 
addition  to  that,  use  the  way  for  the  accommodation  of  other 
and  more  remote  lands.^ 

16.  In  the  case  of  Salisbury  v.  Andrews,  the  question  was, 
whether  a  right  of  access  to,  and  to  use,  a  sidewalk,  passed 
with  the  principal  estate  granted.  The  house  was  situate 
upon  Central  Court,  so  called.  The  description  of  the  par- 
cel on  which  it  stood  was  by  feet  and  inches  from  point  to 
point  at  the  four  corners,  "  together  with  the  land  in  front 
of  said  house  under  tlie  stone  steps,  with  a  right  to  pass  and 
repass  on  foot,  and  with  horses  and  carriages,  to  said 
house  *and  land,  through  said  Central  Court,  at  all  [*181] 
times."  The  grantee  was  to  be  at  half  the  expense 
in  keeping  the  sidewalk  in  front  of  the  house  in  good  repair. 
The  injury  complained  of  by  the  owner  of  this  liouse  was, 
the  narrowing  of  the  court  and  passage-way.  In  commenting 
upon  the  eftect  to  be  given,  in  a  deed,  to  the  state  and  con- 
dition of  the  premises  thereby  conveyed,  in  construing  its 
meaning,  the  court  say  that  it  is  the  ♦natural  presumption, 
"  when  a  man  erects  a  house  on  his  own  land,  and  makes  a 
sidewalk  in  front  of  it,  paved  with  brick,  and  thereby  fitted 
for  the  passage  of  persons  and  wheelbarrows,  and  especially  if 
he  opens  doors  and  gates  upon  such  passage,  forming  con- 
venient means  of  access  to  different  parts  of  the  house  and 
grounds,  and  adapts  the  construction  of  the  house  and 
grounds  to  such  means  of  access,  it  is  intended  that  such 
passage  shall  remain  for  the  use  and  benefit  of  all  those  who 
hold,  use,  or  purchase  the  house,  and  that  they  are  intended 

to  be  annexed  to  the  house  as  permanent  easements 

Still,  it  is  competent  for  the  one  to  sell,  and  the  other  to  pur- 
chase, the  house  without  the  easements But  where 

the  language  is  not  clear  and  explicit,  where  it  is  open  to 
doubt,  and  the  question  is,  what  was  the  intent  of  the  parties, 

1  Kirkham  v.  Sharp,  1  Whart.  323.     See  Howell  r.  King,  1  Mod.  190;  Law- 
ton  V.  Ward,  1  Ld.  Raym.  75 ;  Jamison  v.  M'Credy,  :■>  Watts  &  S.  129,  140. 


238  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  II. 

the  presumption  arising  from  such  original  adaptation  and 
annexation  of  the  easements  to  the  house  is  of  considerable 
importance."  Tlie  court  refer  to  the  language  of  the  deed 
in  reference  to  the  "  court  "  and  the  "  sidewalk,"  and  the 
condition  of  the  premises,  for  the  purpose  of  ascertaining 
what  the  parties  intended,  and  conclude  that  a  way  of  some 
kind  was  intended  ;  that  here  being  a  paved  way,  with  a  side- 
walk, it  must  be  the  one  intended.  "  A  right  to  pass  and 
repass,  if  over  vacant  and  unoccupied  land  where  no  way 
actually  exists  or  is  used,  would  be  the  grant  of  a  conven- 
ient way,  the  direction  and  width  of  which  would  be  deter- 
mined by  various  circumstances.  But  similar  words  being 
used  in  regard  to  a  place  over  which  a  way  is  already  fixed 

by  buildings  or  permanent  enclosures,  would  be  con- 
[*182]   strued  *to  be  a  grant  of  a  way  thus  located,  fixed, 

and  defined."  And  such  was  held  to  be  the  proper 
construction  to  be  given  to  this  deed,  and  that  the  plaintiff 
acquired  thereby  a  right  of  way  over  the  sidewalk  of  the 
width  at  which  it  was  at  the  time  of  making  the  deed.^ 

17.  The  case  of  Lewis  v.  Carstairs  was  somewhat  similar 
in  its  facts  to  that  of  Kirkham  v.  Sharp,  and  the  same  doc- 
trine is  there  sustained  by  the  court,  limiting  the  use  of  a 
way  created  for  the  accommodation  of  certain  lots  to  these 
lots,  and  excluding  its  use  for  other  purposes.  Tiie  facts 
were  briefly  these.  Plaintiff's  grantor  owned  an  estate  at 
the  intersection  of  two  streets,  E.  and  C.  The  defendant 
owned  an  adjacent  estate  on  C.  Street.  Plaintiff's  grantor 
conveyed  to  him  a  part  of  his  estate,  bounding  him  on  E. 
Street,  and  agreed  to  open  an  alley  from  E.  Street  along  the 
side  of  the  lot  sold  to  the  plaintiff,  and  along  the  rear  of  his 
remaining  lot  fronting  on  C.  Street,  "  bounded  on  an  alley 
of  the  width,  &c.,  intended  to  be  left  open  by  the  grantor, 
together  with  the  free  use  and  privilege  of  the  said  alley  as  a 
passage,  in  common  with  the  grantor  and  his  heirs,  and  those 
to  whom  he  may  grant  the  same  privilege."     Afterwards  the 

1  Salisbury  v.  Andrews,  19  Tick.  250,  253. 


Sect.  3.]  WAYS   CREATED    BY   GRANT.  239 

plaintiff's  g-rantor  conveyed  his  estate  on  C.  Street  to  the  de- 
fendant, who  undertook  to  use  said  alley  to  pass  from  E. 
Street,  along  the  rear  of  the  parcel  last  conveyed  to  him,  to 
the  rear  of  the  adjoining  parcel.  And  the  court  held  he  had 
no  riglit  thus  to  extend  the  use  of  the  alley  to  other  lands 
than  those  to  which  the  original  parties  who  created  it  made 
it  appendant.^ 

18.  The  above  case  has  been  referred  to  thus  specially, 
partly  to  illustrate  the  application  of  the  doctrine  of  Kirk- 
ham  V.  Sharp,  and  partly  to  suggest  a  limitation  to  the  prop- 
osition elsewhere  made,  that,  where  an  easement  becomes 
appurtenant  to  an  estate,  it  remains  appurtenant  to 
*every  part  of  it  into  which  it  may  be  divided,  which,  [*183] 
though  generally  true,  is  often  limited  by  the  nature 
of  the  casement,  and  the  condition  of  the  estate  to  which  it 
is  attached. 

The  distinction  seems  to  depend  upon  whether  the  ease- 
ment—  a  way,  for  instance  —  is  indefinite  in  its  limitation, 
or,  from  the  nature  of  the  use  to  be  made  of  it,  is  restricted 
and  defined.  "  If,"  says  Jervis,  C.  J.,  "I  grant  a  way  to  a 
cottage  wiiicli  consists  of  one  room,  I  know  the  extent  of  the 
liberty  1  grant,  and  my  grant  would  not  justify  the  grantee 
in  claiming  to  use  the  way  to  gain  access  to  a"  town  he  might 
build  at  the  extremity  of  it."  ^ 

So  it  was  held  that  a  way  to  a  dwelling-house,  wash-house, 
and  stable  does  not  justify  the  use  of  it  for  access  to  a  field. 
A  way  to  a  cottage  ceases,  if  the  cottage  be  changed  into  a 
tan-yard.  But  if  the  grant  be  of  a  cottage,  with  all  ways  to 
the  same,  the  right  of  way  is  not  lost  by  altering  the  cottage. 
If  the  grant  be  .of  a  way  from  a  highway  to  the  grantee's 
dwelling-house,  he  may  not  open  it  to  his  field,  and  drive 
his  cattle  over  the  grantor's  land  along  such  way  to  his 
field.     And  if  the  way  be  to  a  particular  corner  of  a  field, 

1  Lewis  V.  Carstairs,  6  Whart.  193. 

2  Metropolitan  Cemetery  Co.  v.  Eden,  16  C.  B.  42.  See  Allan  v.  Gomme, 
11  Adolpli.  &  E.  759  ;  ante,  chap.  1,  sect.  3,  pi.  38. 


240  THE   LAW   OF  EASEMENTS  AND   SEEVITUDES.  [Cii.  II. 

the  grantee  may  not  use  it  to  enter  his  field  at  any  other 
point.^ 

And  this  may  be  further  illustrated  by  a  case  put  by 
Denman,  C.  J.,  in  giving  an  opinion  in  Allan  v.  Gomme,  of 
the  grant  of  a  small  parcel  of  land,  part  of  a  large  field 
devoted  to  the  culture  of  crops,  for  the  purpose  of  a  yard  to 
the  house  of  the  grantee,  if  a  way  were  reserved  across  the 
same  to  the  field  ;  the  grantor  could  not  sell  this  field  into 
house-lots,  and  thereby  turn  this  way  into  one  for  the  accom- 
modation of  a  town  or  village.^ 

19.  The  following  case  is  stated  here,  because  it  is  treated 
of  as  coming  under  the  category  of  ways,  though  not 
[*184]  easily  *assigned  to  any  of  the  classes  already  men- 
tioned. There  was  a  grant  of  a  "  river  landing,  so 
far  as  the  same  shall  be  necessary  for  erecting,  maintaining, 
and  supporting  an  intended  bridge."  The  court  held  it  to 
be  a  grant  of  a  servitude  or  easement  in  land  for  a  defined 
purpose.  "  It  is  a  right  of  way  of  a  specified  kind,  and  noth- 
ing more The  grant  being  of  an  easement,  the  occu- 
pation under  it  must  be  regarded  as  the  exercise  of  the  right 
granted.  Long  enjoyment  of  an  easement  will  establish  a 
right  to  an  easement,  but  not  to  the  land  itself"  ^ 


SECTION  IV. 

HOW   WAYS   MAY   BE   USED. 

1.  Case  of  way,  "  across,"  "  over  and  along,"  &c.,  "  to  get  hay,"  &c.,  how  to  be  used. 

2.  Cases  of  special  ways  and  for  special  purposes,  rule  of  construction. 

3.  Grantee  of  way  held  strictly  to  the  terms  of  his  grant. 

4.  How  far  a  "  carriage-way  "  is  a  "  drift-way."  0 

5.  When  one  not  in  possession  may  use  a  way  appurtenant,  &c. 

6.  How  far  a  way  for  agricultural  purposes  a  general  one. 

7.  Atkins  v.  Bordman.     Rights  of  way  defined  and  explained. 


1  Henning  v.  Burnet,  8  Exch.  187. 

2  See  ante,  chap.  1,  sect.  3,  pi.  38. 

3  Schuylkill  Nav.  Co.  v.  Stocvcr,  2  Grant,  Cas.  462. 


Sect.  4.]  IIOW   WAYS   MAY   BE    USED.  241 

8.  Bounding  by  an  intended  way  only  implies  a  suitable  one. 

9.  A  right  to  pass  over  twenty  feet  is  only  so  far  as  it  is  necessary. 

10.  Right  of  way  carries  all  that  is  necessary  to  enjoy  it. 

11.  Metropolitan  Cemetery  Co.  v.  Eden.    Eight  to  pass  from  any  part  of  a  way  to  land. 

12.  Allan  v.  Gomme.     Restricting  ways  to  the  special  objects  of  the  grant. 

13.  Henning  i'.  Burnet.     Specific  ways  not  to  be  changed  in  their  use. 

14.  Dand  t^  Kingscote.     Adopting  improved  modes  of  using  ways. 

1.  This  leads  to  a  consideration  of  the  extent  and  uses  to 
which  ways  of  a  particular  description  may  be  applied,  and 
how  far  this  is  limited  and  controlled  by  the  nature  and  con- 
dition of  the  estates  for  whose  benefit  the  same  is  created. 

A  grant  of  a  way  across  a  parcel  of  land  does  not  give  a 
right  to  enter  upon  the  parcel  on  one  side,  and,  after 
going  *partly  across,  to  come  out  upon  the  same  [*185] 
side.  And  where  one  under  such  a  grant  drew  tim- 
ber from  his  own  land  on  to  the  servient  parcel  and  turned 
it  round,  which  he  could  not  do  on  his  own  land,  it  was  held 
that  he  was  not  justified  under  his  right  of  way.^  So  where 
one  had  a  way  "  in,  through,  over,  and  along  "  a  certain 
strip  of  land  from  A  to  B,  it  was  held  that  he  had  not  thereby 
a  right  to  a  way  across  the  strip  of  land.^  Where  the  grant 
was  of  a  convenient  way  to  get  hay,  <fec.,  over  the  grantor's 
land,  it  was  limited  to  one  line ;  and  though  at  first  an  in- 
definite one,  when  it  had  been  once  designated,  it  could  not 
be  changed  at  the  election  of  the  grantee.^  But  what  is  a 
reasonable  use  of  a  way,  where  the  purposes  are  not  defined, 
is  a  question  for  the  jury.^ 

Where  a  right  of  way  has  been  created,  but  no  time  or 
hour  in  the  day  is  fixed  in  which  it  may  be  used,  the  French 
law  seems  to  be  this  :  if  it  is  to  be  exercised  over  an  unen- 
closed place,  it  may  be  used  at  any  hour,  whether  by  night 
j^or  by  day  ;  but  if  the  place  is  designed  to  be  closed  for  the 
security  of  the  owner  or  that  of  the  public,  it  may  be  used 
at  any  convenient  hour,  but  he  who  is  to  enjoy  it  cannot  in- 

1  Comstocki'.  Van  Deusen,  5  Pick.  163. 

2  Senhouse  v.  Christian,  1  T.  E.  560,  569  ;  Woolr.  Ways,  33. 
^  Jones  V.  Percival,  5  Pick.  485. 

*  Hawkins  v.  Carbines,  3  Hurlst.  &  N.,  Am.  ed.  914. 
16 


242  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  11. 

sist  that  it  should  be  kept  open  all  hours  of  the  night.  But 
if  the  right  of  passing  in  the  night  in  such  a  case  is  granted, 
the  owner  of  the  land  cannot  prevent  its  being  enjoyed  at 
any  hour ;  and  if,  on  the  other  hand,  the  owner  of  the  domi- 
nant estate  chooses  to  exercise  the  right,  he  must  liave  a  key 
by  which  to  unlock  the  gate  of  the  enclosure,  and  must  not 
leave  it  open  after  having  passed  through  it.^ 

2.  A  grant  of  way  on  foot,  and  for  horses,  oxen,  cattle, 
and  sheep  does  not  authorize  one  to  carry  manure  over  the 

•  way  in  a  wheelbarrow.^  A  way  to  Green  Acre  is  a 
[*186]  way  for  *any  purposes  for  which  that  field  could  be 
used.  But,  as  will  be  shown,  if  it  was  to  a  particu- 
lar open  space  described  in  the  grant,  and  that  was  after- 
wards occupied  by  a  building,  the  right  of  way  is  defeated, 
since  it  could  only  be  used  for  the  purposes  for  which  it  was 
granted,  and  that  could  no  longer  be  done.^  If  granted  or 
acquired  over  Black  Acre  to  Green  Acre,  and  the  grantee  of 
the  way,  having  passed  over  Black  Acre,  pass  over  and  be- 
yond Green  Acre,  he  will  be  a  trespasser,  because  the  right 
of  way  did  not  justify  such  a  use  of  it.  But  it  is  suggested 
that  if,  after  having  reached  Green  Acre,  the  owner  thereof 
had  proceeded  thence  over  his  own  land  or  a  public  way  to  a 
mill,  it  might  be  otherwise.^  And  it  is  held,  moreover,  that 
if,  in  the  case  supposed,  the  owner  of  the  way  was  passing 
over  Black  Acre  with  an  intent  to  pass  beyond  Green  Acre, 
he  would  be  liable  in  trespass,  the  character  of  the  act, 
whether  justified  or  otherwise,  depending  upon  the  intention 
with  which  he  entered  upon  Black  Acre ;  and  this  is  for  the 
jury  to  determine.^ 

3.  The  proposition  in  regard  to  confining  the  use  of  a 

1  3  TouUicr,  Droit  Civil  Franrais,  497,  498. 

2  Brunton  v.  Hall,  1  Q.  B.  792. 

8  Ilenning  v.  Burnet,  8  Exch.  187  ;  Allan  v.  Gomme,  11  Adolph.  &  E.  759. 

*  Howell  ?;.  Kinj^,  1  Mod.  190  ;  Davenport  v.  Lanison,  21  Pick.  72  ;  Lawton 
V.  Ward,  1  Ld.  Kayni.  75  ;  Woolr.  Ways,  34  ;  Shroder  v.  Brenncman,  23  Penn. 
St.  348  ;  1  RoUe,  Abr.  391,  pi.  50. 

6  French  v.  Marstin,  4  Fost.  440,  451. 


Sect.  4.]  HOW   WAYS   MAY   BE   USED.  243 

way  strictly  to  the  purposes  for  wliich  it  was  granted,  is 
thus  stated  in  the  case  of  French  v.  Marstin,  above  cited  : 
"  The  grantee  of  a  way  is  limited  to  msq  his  way  for  the 
purposes  and  in  the  manner  spccihed  in  his  grant,  lie 
cannot  go  out  of  his  way,  nor  use  it  to  go  to  any  other  place 
than  that  described,  nor  to  that  place  for  any  other  purpose 
than  that  specified,  if  the  use  in  this  respect  is  restricted."  ^ 
So  where  there  was  a  grant  of  a  right  of  way  and  a  free  open 
road  from  a  highway  to  a  mill  privilege,  it  was  held  that  the 
grantee  had  not  thereby  any  right  to  pile  lumber  upon  the 
way  so  granted. 2 

4.  Although  it  was  held,  as  elsewhere  stated,  that  a  pre- 
scriptive way  for  a  carriage  did   not  include  a  drift-way, 
Chambre,  J.  was  inclined  to  hold  that  a  carriage- 
way was  *prima  facie  and  strong  presumptive  cvi-  [*187] 
dence  of  the  grant  of  a  drift-way.     The  grantee  in 

such  cases  might  send  back  his  horses  without  his  carriage, 
or  he  might  draw  his  carriage  by  oxen  as  well  as  horses,  and 
in  either  case  he  might  send  back  his  horses  or  oxen  loose, 
in  order  to  drive  them  to  pasture.^ 

5.  In  one  instance,  at  least,  it  has  been  held  that  a  man 
may  exercise  a  right  of  way  appurtenant  to  an  estate, 
although  he  is  not  in  possession  of  the  same ;  and  that  is, 
where  the  owner  of  a  tenement  to  which  there  is  a  way 
appurtenant  lets  the  same  to  a  tenant,  he  may  use  the  way 
to  view  waste,  demand  rent,  and  remove  obstructions  from 
the  premises."^ 

6.  It  has  been  questioned  how  far  the  grant  of  a  way  for 
agricultural  purposes  is  a  general  right  of  way.  It  seems, 
however,  to  be  one  of  a  limited  and  qualified  character.     It 

,  was  held  not  to  include  the  right  to  transport  coals  over  such 

1  French  v.  Marstin,  4  Fost.  440,  449.  See  Regina  v.  Pratt,  4  Ellis  &  B.  SCO  ; 
Knight  V.  Woore,  3  Bing.  N.  C.  3.  Bakcman  v.  Talbot,  31  N.  Y.  3GG ;  Colches- 
ter V.  Roberts,  4  M.  &  W.  774. 

2  Kaler  v.  Bcaman,  49  Maine,  208. 

3  Ballard  v.  Dyson,  1  Taunt.  279,  288. 

*  Proud  V.  Hollis,  1  Barnew.  &  C.  8  ;  Woolr.  Ways,  35. 


244  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  II. 

a  way,^  nor  to  transport  lime  from  a  quarry .^  So  a  right  to 
draw  water  from  a  river  will  not  sustain  a  plea  of  a  right  to 
draw  goods  and  water,^  and  a  right  to  cart  timber  will  not 
sustain  a  plea  of  a  general  right  of  way  on  foot,  and  with 
horses,  carts,  wagons,  and  other  carriages.* 

7.  The  whole  subject  of  the  rights  of  way  and  their  limi- 
tations was  most  elaborately  and  ably  examined  by  Shaw, 
C.  J.,  in  the  case  of  Atkins  v.  Bordman,  so  frequently  cited 
in  the  course  of  this  work.  In  that  case  there  was  a  grant 
of  a  parcel  of  land,  which  was  described  as  having  a  gate 
and  passage-way  about  five  feet  wide  on  one  side,  and  a  right 
of  way  was  reserved  "  through  and  upon  the  said  gate  or 
passage-way,  for  carrying  and  recarrying  wood  or  any  other 

thing  through  the  same,  and  over  the  yard  or  ground 
[*188]  *of  said  messuage  hereby  granted,  into  and  from  the 

housing  and  land  of  me  (the  grantor),  for  the  use 
and  accommodation  thereof."  It  was  held  to  intend  a  con- 
venient passage-way,  but  not  of  a  definite  width.  An  ease- 
ment of  way,  as  observed  by  the  Chief  Justice,  consists  in 
the  right  to  use  the  surface  of  the  soil  for  the  purpose  of 
passing  and  repassing,  and  the  incidental  right  of  properly 
fitting  the  surface  for  that  use.  But  the  owner  of  the  soil 
has  all  the  rights  and  benefits  of  ownership  consistent  witli 
such  easement.  All  which  the  person  having  the  easement 
can  lawfully  claim  is  the  use  of  the  surface  for  passing  and 
repassing,  with  a  right  to  enter  upon  and  prepare  it  for  that 
use,  by  levelling,  gravelling,  ploughing,  and  paving,  accord- 
ing to  the  nature  of  the  way  granted  or  reserved  ;  that  is, 
for  a  foot-way,  a  horse-way,  or  a  way  for  all  teams  and 
carriages. 

If  the  way  is  not  bounded  or  limited,  or  there  be  no  one 
in  existence,  the  grant  of  a  way  would  be,  in  point  of  width 

1  Cowling  V.  Iligginson,  4  Mecs.  &  W.  245. 

2  Jackson  v.  Staccy,  Holt,  N.  P.  455. 

3  Knight  V.  Woore,  3  Bing.  N.  C.  3. 

*  Ili-liiim  V.  Rabett,  5  Bing.  N.  C.  622. 


Sect.  4.]  HOW   WAYS   MAY   BE   USED.  245 

and  height,  such  as  is  reasonably  necessary  and  convenient 
for  the  purposes  for  which  it  is  granted.  If  a  foot-way,  it 
shall  be  high  and  wide  enough  for  persons  to  pass  with  such 
things  as  foot-passengers  usually  carry.  If  for  teams  and 
carriages,  it  shall  be  sufficient  to  admit  carriages  of  the 
largest  size,  or  loads  of  hay  and  other  vehicles  usually  moved 
by  teams.  So  that,  what  is  reasonable  is  partly  law  and 
partly  fact ;  the  facts  are  found  by  the  jury,  and  then  the 
court  declare  whether  it  is  convenient  or  not.  When  no 
dimensions  of  a  way  are  defined,  but  the  purposes  of  it  are 
expressed,  the  dimensions  will  be  held  to  be  sufficient  for  the 
accomplishment  of  that  object.  Where  the  way  reserved 
was  for  a  house,  it  excluded  the  idea  of  such  a  use  as  might 
be  required  for  a  store,  such  as  bales,  boxes,  and  the  like. 
And  when  "  wood  or  any  other  thing  "  is  mentioned  in 
connection  with  a  house,  it  implies  fire-wood,  and  not  timber 
.  for  sale  ;  or  things  usually  used  in  dwelling-houses,  such  as 
vegetables,  provisions,  furniture,  and  the  like.  And 
the  reservation  of  a  way  "  for  carrying  and  *re-carry-  [*189] 
ing  wood  or  any  other  thing  ....  into  and  from 
the  housing  and  land  of,  <fec.,  for  the  use  and  accommodation 
thereof,"  was  held  to  be  a  convenient  foot-way  to  and  from 
the  grantor's  dwelling-house,  of  suitable  height  and  dimen- 
sions to  carry  in  and  out  furniture,  provisions,  and  neces- 
saries for  family  use,  and  to  use  for  that  purpose  wheelbar- 
rows, hand-sleds,  and  such  small  articles  as  are  commonly 
used  for  that  purpose  in  passing  to  and  from  the  street  to 
the  dwelling-house  in  the  rear,  through  a  foot-passage  in  a 
closely-built  and  thickly-settled  town.^ 

The  easement  reserved  was  "  a  right  of  passage  "  over  the 
agricultural  lands  which  were  set  off  on  partition  made. 
Nothing  passes  as  incident  to  such  a  grant  but  what  is  requi- 
site to  its  fair  enjoyment.  That  must  be  the  reasonable  and 
usual  enjoyment  and  user  of  such  a  privilege.  The  land- 
owner may  nevertheless  appropriate  his  land  to  such  pur- 

1  Aikias  V.  Bordman,  2  Mete.  457. 


246  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.  [Ch.  II. 

pose  as  he  pleases,  consistent  with  the  right  of  the  grantee 
of  the  passage  to  and  fro.^ 

The  general  principles  applicable  to  questions  of  this  kind 
are  here  so  fully  stated  and  enforced,  that  little  more  is 
necessary  than  to  refer  to  particular  cases  for  purposes  of 
illustration.  Thus,  in  the  case  above  stated,  it  was  held  that 
the  owner  of  the  land  across  which  the  way  was  reserved 
might  erect  a  building  over  it,  provided  he  left  a  convenient 
jDassage-way  beneath  it  of  a  suitable  height,  and  sufficiently 
lighted  to  be  conveniently  used.^ 

8.  So,  where  one  let  a  parcel  of  land,  bounding  it  upon  an 
intended  way  of  thirty  feet,  and  afterwards  occupied  a  part 
of  it  so  as  to  reduce  it  to  twenty-seven  feet  in  widtli,  it  was 
held  that  the  recital  did  not  amount  to  a  covenant  as  to  the 
way  or  as  to  its  width  ;  that  under  it  the  lessee  was  entitled 
to  a  way  of  a  suitable  width,  and  if  one  of  twenty-seven  feet 
answered  that  description,  it  was  all  he  could  insist  upon 
under  his  lease,  inasmuch  as,  it  not  being  an  existing  way  at 
the  time  of  the  grant,  no  inference  as  to  its  actual  width  was 
to  be  derived  from  what  then  was  apparent.^ 

9.  So,  where  there  was  a  grant  of  a  parcel  of  land,  "  with 
a  right  of  passing  and  repassing  over  the  space  of  twenty 
feet,  between  the  west  wall  of  the  store  and  east  line  of  the 

granted  premises,"  it  was  held  not  to  describe  the 
[*190]   limits  of  *the  way  granted,  but  that  it  was  a  grant  of 

a  convenient  way  within  those  limits,  adapted  to  the 
convenient  use  and  enjoyment  of  the  land  granted,  for  any 
useful  and  proper  purpose  for  which  the  land  might  be  used, 
considering  its  relative  position.  And  what  is  a  suitable  and 
convenient  way  must  depend  upon  circumstances.  It  could 
not,  therefore,  necessarily  follow  that  the,  grantor  would  be 
liable  for  obstructing  some  part  of  this  space,  and  it  would 

1  Bakeman  ;,'.  Talbot,  .31  N.  Y.  371. 

2  Atkins  V.  Bonlman,  2  Mete.  46G,  468. 

3  liardinfj  v.  Wilson,  2  Barnew.  &  C.  96.  Sec  Walker  v.  City  of  Worcester, 
G  Gray,  548. 


Sect.  4.]  HOW    WAYS   MAY    BE   USED.  247 

be  for  the  jury  to  say  whether  the  owner  of  the  easement  was 
thereby  impeded  in  the  use  of  a  convenient  way.^ 

But  where  the  grant  was  of  a  right  "  in  and  over  and 
through  a  forty  feet  street,"  it  was  hel(i  to  give  a  way  unob- 
structed over  any  and  every  part  of  it,  as  a  strip  of  land  dedi- 
cated to  the  purposes  of  a  street  in  tlie  neigliborhood  of  the 
locality  of  the  premises.^ 

10.  The  grant  of  a  right  of  way  carries  with  it  all  rights 
to  the  use  of  the  soil  which  are  properly  incident  to  the  free 
exercise  and  enjoyment  of  the  right  granted  or  reserved. 
Thus,  a  right  of  way  to  a  warehouse  would  authorize  the 
tenant  of  such  warehouse  to  place  on  the  ground  goods 
brought  to  the  warehouse,  and  to  keep  them  a  reasonable 
and  convenient  time  to  put  them  in  store,  and  to  place  and 
keep  goods  on  the  ground  a  reasonable  length  of  time,  which 
are  to  be  carried  from  the  warehouse.  And  what  would  be 
such  reasonable  and  convenient  time  would  be  a  question  of 
fact  depending  upon  many  circumstances.  What  would  be 
an  unreasonable  length  of  time  to  leave  goods  upon  a  side- 
walk, or  in  a  street  which^was  much  frequented,  would  not 
be  so  on  rear  ground,  where  they  would  encumber  no  one 
having  an  equal  right  of  way.  In  applying  these  general 
principles,  it  was  held  that,  where  a  warehouse  was  granted 
with  a  right  of  passage  which  had  been  used  for  carrying 
goods  to  and  from  the  same,  "  in  as  full  and  ample  a  manner 
as  they  now  are  or  heretofore  have  been  used  and  enjoyed," 
these  were  not  words  of  restriction  nor  limitation  of  the  use 
to  such  as  had  been  made  of  it,  and  none  other.  If,  for  in- 
stance, the  way  used  had  been  over  the  natural  surface  of 
the  earth,  the  grantee  might  improve  it  by  macadjjmizing, 
paving,  or  planking  it,  being  limited  to  the  use  of 
*the  same  right,  in  a  manner  more  convenient  and  [*191] 
beneficial  to  himself,  without  injury  to  those  having 
the  common  right,  but  he  might  not  use  it  for  another  and 

'  Johnson  v.  Kinnicutt,  2  Cush.  1.53. 

-  Tudor  Ice  Co.  v.  Cunuingham,  8  Allen,  141. 


248  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  II. 

distinct  purpose.  If  the  tenant  in  sucli  case  were  to  lay  a 
railway  track  in  such  passage-way,  for  the  purpose  of  moving 
his  goods  thereon,  it  would  be  a  question  for  the  jury  whether 
the  same  interrupted  other  abutters  in  their  use  of  the  sur- 
face as  a  passage-way,  or  caused  any  actual  damage  to  the 
owner  of  the  soil,  or  was  or  was  not  a  use  of  the  soil  for  a 
distinct  purpose  beyond  that  of  a  right  of  way.  But  if  wliat 
the  tenant  did  was  only  an  improvement  of  the  surface,  to  fit 
it  the  better  for  the  passage  of  persons,  teams,  and  carriages, 
and  the  transportation  of  merchandise  not  injurious  to  the 
other  abutters,  nor  to  the  owner  of  the  soil,  it  would  not  be 
a  new  and  distinct  use  of  the  soil.  It  was  within  the  right 
of  way  reserved  to  the  abutters,  and  uot  adverse  to  the  right 
of  the  owner,  and  no  action  therefor  would  lie.^ 

11.  In  Metropolitan  Cemetery  Company  v.  Eden  the  ques- 
tion was  to  determine  the  extent  of  the  way  granted,  where 
the  grant  was  of  a  parcel  of  land,  referring  to  a  plan,  on  one 
side  of  which  was  a  way  or  road,  "  together  with  full  and 
free  liberty,  license,  &c.,  to  the  grantees  and  all  persons  com- 
ing to  or  going  from  the  same  la^id,  or  any  part  thereof,  to 
use  and  enjoy,"  &c.,  "  the  roads  or  ways  leading  to  and  from 
the  same  land,  as  the  same  ways  were  described  in  the  said 
map  or  plan."  On  the  plan  there  was  a  hedge  by  the  side  of 
the  parcel  of  land  next  to  the  way,  in  which  were  two  gates. 
The  purchaser  cut  down  that  hedge  and  laid  a  heavy  wall  in 
its  place,  with  gates  in  different  places  from  those  indicated 
on  the  plan,  and  formerly  standing  in  the  hedge.  A  pur- 
chaser of  the  land  upon  the  opposite  side  of  the  way,  the  fee 
of  which  still  remained  in  the  original  grantor,  altered  the 
way  by  ^digging  it  down  in  front  of  these  new  gates.  And 
the  question  was,  whether  the  first  pvirchaser 
[*192]  *was  not  restricted  to  the  gates  as  they  were  origi- 
nally placed,  and  whether  he  had  a  right  to  com- 
plain of  the  obstruction  to  gates  placed  at  different  points 

1  Appleton  V.  Fullerton,  I  Gray,  186,  194;  Brown  v.  Stone,  10  Gray,  65;  Ly- 
man V.  Arnolil,  5  Mason,  198. 


Sect.  4.]  HOW   WAYS   MAY   BE   USED.  249 

from  these.  But  the  court  held  that  the  right  of  access  to 
the  lot  over  the  way  indicated  upon  the  plan  was  indefinite, 
and  might  be  used  anywhere  ;  that  making  this  wall  did  not 
deprive  liim  of  the  right  to  use  any  other  way  of  access, 
whenever  lie  chose  to  open  such  a  way,  and  that  the  rule 
was  altogether  different  where  the  way  is  indefinite  from 
what  it  is  if  defined.  In  the  latter  case,  it  cannot  be  ex- 
ceeded or  used  in  any  other  place  or  mode  than  that  ex- 
pressed in  the  deed.^ 

And  this  will  probably  serve  for  a  clew  to  reconcile  what 
may  sometimes  seem  an  inconsistency  in  referring,  as  courts 
often  do,  to  the  state  and  condition  of  the  premises  or  plans 
thereof,  in  determining  what  rights  and  easements  pass  there- 
with ;  as  in  this  case,  though  there  was  a  defined  way  laid 
down  upon  the  plan,  it  was  to  be  used  by  persons  coming 
from  or  going  to  "  any  part "  of  the  granted  premises,  and 
did  not  specify  the  gates  on  the  plan  as  the  mode  of  access 
to  the  premises. 

12.  To  illustrate,  further-,  the  principles  of  construction 
which  courts  adopt  in  ascertaining  the  limits  of  grants  of 
ways,  the  case  of  Allan  v.  Gomme,  which  was  elaborately 
considered,  is  referred  to,  not  only  for  the  principal  point 
raised  and  settled  in  it,  but  for  sundry  collateral  points 
which  received  the  attention  of  the  court  and  were  applied 
in  settling  the  main  question.  The  grant  in  that  case  was 
of  "  a  right  of  way  and  passage  over  said  close,  &c.,  to  the 
stable  and  loft  over  the  same,  and  the  space  and  opening 
under  the  said  loft,  and  then  used  as  a  wood-house."  The 
grantee  of  this  way,  after  this,  converted  this  loft  and 
space  under  it  used  as  a  wood-house  into  a  cottage, 
and  undertook  to  use  the  way  for  the  purposes  of  the 
cottage.  The  question  was,  whether  this  grant  of 
way  was  to  the  *place  occupied  by  the  loft  and  space  [*193] 
for  any  purposes  to  which  they  might  be  appropri- 
ated, or  was  limited  to  the  use  of  it  as  a  wood-house,  or  what 

1  Mctropolitau  Cemetery  Co.  v.  Eden,  16  C.  B.  42. 


250  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Ch.  II. 

was  its  limit.  The  court  held  that  it  was  not  limited  to 
purposes  of  a  wood-house  alone,  and  that  a  reference  to  the 
wood-house  was  to  indicate  the  terminus  of  tlie  way  ;  nor  was 
it  a  way  for  all  purposes,  for  if  so,  a  grant  of  a  way  to  go 
across  a  man's  yard  might  be  turned  into  a  way  for  a  village 
to  be  built  at  the  end  of  it.  They  held  it  was  to  be  taken 
as  intending  a  way  to  an  open  space  of  ground  generally, 
which  was  to  be  in  the  same  predicament  in  which  it  was  at 
the  time  of  making  the  deed,  but  to  be  used  for  any  pur- 
poses the  grantee  chose,  provided  it  continued  in  the  same 
open  state,  and  not  to  be  used  for  buildings  to  be  erected 
thereon.  One  case,  put  for  illustration  by  Denman,  C.  J., 
was  that  of  a  way  to  a  field  of  many  acres,  then  in  corn  or 
pasture,  reserved  over  a  small  parcel  granted  for  a  man's 
yard  ;  and  if  the  grantor  were  to  build  a  village  on  his  field, 
it  would  not  be  claimed  that  the  reservation  of  such  a  way 
could  be  extended  to  such  a  use.^ 

13.  In  the  case  of  Henning  v.  Burnet,  the  extent  to  which 
the  doctrine  of  Allan  v.  Gomme  might  lead,  from  the  terms 
there  employed,  was  somewhat  modified,  though  its  general 
doctrine,  that  reference  is  to  be  had  to  the  existing  state  of 
things  at  the  time  the  grant  is  made  in  construing  its  terms 
and  meaning  in  respect  to  the  nature  and  extent  of  the  ease- 
ments that  pass  with  it,  is  not  impugned. 

In  that  case  the  owner  of  a  dwelling-house,  coach-house, 
and  stable  had  a  field  which  belonged  and  was  used  with 
the  same,  constituting  together  one  estate.  There  was  a 
private  carriage-way  from  a  turnpike  to  his  dwelling-house 
and  coach-house,  and  also  to  the  field,  by  a  gate  from  the  car- 
riage-road opening  into  the  field  at  a  particular  point 
[*194]  *at  the  end  of  the  carriage-way.  He  conveyed  the 
above  premises,  "  with  free  liberty  of  ingress  with 
cattle,"  <tc.,  in,  over,  and  upon  the  carriage  road,  &c.,  to 
the  dwelling-house,  coach-house,  and  stables.  The  pur- 
chaser of  the  estate  tore  down  the  carriage-house  and  stables, 

J  Allan  V.  Gomme,  1 1  Adolph.  &  E.  759, 


Sect.  4.]  HOW   WAYS   MAY   BE   USED.  251 

and  built  a  wall  across  the  private  way,  and  opened  a  gate 
from  the  carriage-way  to  another  corner  of  the  field.  It  was 
held  that  he  had  no  right  to  use  this  new  entrance  into  the 
field.  In  fact,  there  was  no  way,  in  terms,  granted  in  re- 
spect to  the  field,  and  the  only  way  which  had  been  used  to 
reach  it  was  from  the  end  of  the  carriage-way,  which  only 
authorized  the  grantee  to  go  through  the  old  gate,  and  was 
the  only  way  that  passed  by  the  grant.^ 

14.  In  Dand  v.  Kingscote,  a  grant  of  land  was  made,  re- 
serving the  mines  within  it,  with  sufficient  "  way  leave  "  and 
"  stay  leave,"  with  liberty  of  sinking  and  digging  pits.  It 
was  held  that  by  this  reservation  the  grantor  had  no  right  to 
use  this  way  for  the  purpose  of  drawing  coal  from  under  an 
adjacent  lot  of  land,  and  in  so  doing  he  was  a  trespasser,  and 
that  the  limit  of  the  easement  reserved,  and  the  mode  of 
using  it,  were  what  was  reasonably  convenient,  according  to 
the  mode  in  general  use  when  the  right  was  to  be  exercised. 
If,  tlierefore,  in  the  progress  of  improvement,  better  or  more 
feasible  ways  are  devised  and  applied  to  use  tlian  those  known 
and  used  at  the  time  when  the  grant  was  first  made,  the 
mine-owner,  under  a  reservation  in  this  general  form,  might 
adopt  the  improved  way  ;  as,  for  instance,  he  might  substi- 
tute a  railway  for  a  wagon-way,  by  which  to  transport  the 
coal  from  the  pit  across  the  granted  premises,  altliough  the 
construction  of  such  new  way  would  subject  the  land-owner 
to  the  inconvenience  of  having  it  laid  down  in  the  place  of 
the  former  one.  Under  this  reservation,  the  grantor,  more- 
over, might  fix  such  machinery  upon  the  premises 
as  would  be  necessary  to  drain  the  mines,  and  *draw  [*195] 
the  coal  from  the  same,  and,  in  that  case,  he  was 
held  justified  in  erecting  thereon  a  steam-engine  and  an  en- 
gine-house, and  constructing  a  pond  upon  the  premises  to 
supply  water  for  working  the  engine.^ 

1  Henning  v.  Burnet,  8  Exch.  187, 

2  Daud  V.  Kiugscotc,  6  Mees.  &  W.  174. 


252  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.  [Ch.  II. 

SECTION  V. 

OF  THE  RIGHTS  OF  THE  LAND-OWNER  AND  WAY-OWNER  IN  LAND. 

1.  Land-owner  may  do  anything  not  injurious  to  owner  of  the  way. 

2.  Land-owner  has  same  rights  as  to  private  as  to  public  ways. 

3.  Owner  of  way  may,  and  ordinarily  must,  repair  it. 

4.  Limitations  and  exceptions  as  to  general  duty  to  repair. 

5.  Williams  v.  Safford.     Of  going  exti-a  vinm,  if  way  is  impassable. 

6.  What  way-owner  may  do  with  or  upon  the  soil. 

7.  Egress,  regress,  fishing,  and  fowling  give  no  right  to  things  growing. 

8.  Eight  of  way  to  carry  coals,  what  is  embraced  in  it. 

9.  How  far  one  way  may  be  exchanged  for  another. 

1.  The  respective  rights  of  the  owners  of  the  soil  and  of 
the  easement  to  do  acts  upon  the  soil  over  or  adjoining 
which  the  easement  of  way  exists,  were  considered  in  Un- 
derwood V.  Carney,  where  it  was  held  that,  if  one  grant  a 
way  across  his  land,  he  has  no  right  to  make  any  such  use  of 
the  land  adjoining  it  as  produces  any  serious  inconvenience 
to  the  owner  of  the  easement.  He  may  make  a  reasonable 
use  of  it,  having  reference  to  the  public  and  general  use 
which  others  make  of  their  lands  which  are  similarly  situ- 
ated. And  in  addition  to  what  is  said  of  the  riglit  to  main- 
tain fences  across  a  way  by  the  land-owner  (ante  p.  *160), 
it  seems  to  be  now  settled  that  if  the  land-owner  is  not  re- 
strained by  the  terms  of  the  grant  of  a  right  of  way  across 
his  lands  for  agricultural  purposes,  he  may  maintain  fences 
across  such  way,  if  provided  with  suitable  bars  or  gates  for 
the  convenience  of  the  owner  of  the  way.  He  is  not  obliged 
to  leave  it  as  an  open  way,  nor  to  provide  swing  gates,  if  a 
reasonably  convenient  mode  of  passage  is  furnished.^  Thus, 
in  the  case  of  a  grant  of  a  right  of  way  over  a  place  or  court 
in  Boston,  the  owner  of  the  soil  of  the  court  erected  stores 
upon  tlio  adjacent  land,  and  laid  sidewalks  in  front  of  the 

1  Bakeman  v.  Talbot,  31  N.  Y.  366  ;  Bean  v.  Coleman,  44  N.  II.  539  ;  Max- 
well V.  M'Atee,  9  13.  l\Ion.  20;  Cowling  v.  Iligginson,  4  M.  &  W.  245.  See 
State  I',  ruttis,  7  liich.  390, 


Sect.  5.]  EIGHTS   OF   LAND-OWNER,   ETC.   IN   LAND.  253 

same,  and  opened  passages  into  tlie  cellars  under  the  stores, 
and  swung  window-shutters  over  the  line  of  the  way,  and  it 
was  held  to  be  a  lawful  use  of  the  adjacent  land, 
being  a  customary  one.^  So  the  owner  of  land  *ad-  [*19G] 
joining  a  way  may  dig  cellars  by  the  side  of  it,  if  in 
towns  or  cities,  and  may  lay  building  materials  thereon,  if 
he  takes  care  not  improperly  to  obstruct  the  same,  and  re- 
moves the  materials  within  a  reasonable  time.^ 

2.  So  the  owner  of  the  soil  of  a  way,  whether  public  or 
private,  may  make  any  and  all  uses  to  which  the  land  can 
be  applied,  and  all  profits  which  can  be  derived  from  it  con- 
sistently with  the  enjoyment  of  the  easement.  He  may,  as 
before  stated,  maintain  ejectment  to  recover  the  land,  and 
if  the  way  is  discontinued,  he  holds  it  again  free  from  en- 
cumbrance. He  may  sink  a  drain  or  a  watercourse  below  the 
surface,  if  he  do  it  so  as  not  to  deprive  the  public  of  their 
easement.''^  He  may  have  an  action  of  tort  against  one  who 
erects  his  house  fronting  upon  the  line  of  the  street,  and  ex- 
tending his  bay  window  over  the  land  of  the  highway  though 
it  be  so  high  above  the  vehicles  passing  along  the  same  as 
not  to  affect  the  travel  injuriously.  The  act  in  the  case 
cited,  being  of  the  character  of  a  permanent  occupation,  rests 
upon  a  different  ground  from  that  of  O'Linda  v.  Lathrop,* 
or  Underwood  v.  Carney,^  which  was  a  temporary  use  con- 
nected with  the  purposes  of  the  way.*^  So  the  owner  of  the 
land  occupied  by  a  highway,  may  have  trespass  for  entering 
upon  the  same  and  digging  into  the  side  of  it  to  widen  the 
travelled  part  of  it,  though  such  act  by  a  highway  surveyor 
would  be  a  lawful  one." 

1  Underwood  v.  Carney,  1  Cush.  292. 

-  O'Linda  v.  Lothrop,  21  Pick.  292. 

3  Perley  v.  Ciiandler,  6  Mass.  454 ;  Green  v.  Chelsea,  24  Pick.  71  ;  Pomeroy 
V.  Mills,  3  Vt.  279;  Lade  v.  Shepherd,  2  Strange,  1004;  Adams  v.  Emerson,  6 
Pick.  57  ;  Atkins  v.  Bordman,  2  Mete.  457. 

*  21  Pick.  292. 

5  1  Cush.  292. 

^  Cod  man  v.  Evans,  5  Allen,  308. 

'  HoUeubeck  v.  llowley,  8  Allen,  476. 


254       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  II. 

3.  The  owner  of  a  private  way  may  enter  upon  the  same 
and  repair  it,  or  put  it  into  a  condition  to  be  used,  and, 
ordinarily,  it  is  incumbent  upon  the  owner  of  the  way  to 
keep  it  in  repair. ^  The  owner  of  the  way,  for  this  purpose, 
has  a  right  to  do  what  is  necessary  upon  the  soil  to  make  it 
safe  and  convenient  for  use,  such  as  removing  rocks  to  make 
the  way,  &c.  Tlie  rocks,  however,  would  belong  to  the 
owner  of  the  soil,  except  so  far  as  they  were  needed  in  mak- 
ing or  repairing  the  way ,2  and  this  doctrine  was  extended  to 
constructing  and  using  a  canal  under  a  grant  of  an  easement 
of  a  canal  across  another's  land.^  Nor  would  he  have  a 
right  to  go  outside  of  the  limits  of  such  way,  if  defined  and 
designated,  in  passing  from  one  point  to  another,  although 
the  way  were  impassable  by  being  overflowed  or  out  of  re- 
pair.* But  a  different  rule  prevails  in  respect  to  public 
ways.^  Though,  even  then,  he  could  only  justify  removing 
enough  of  the  fences  of  the  adjoining  close  to  enable  him 
to  pass  around  the  obstruction,  doing  no  unnecessary  in- 

jury.6 
[*197]       *4.  The  exceptions  to  these  rules  are  few,  and 

grow  out  of  the  peculiar  circumstances  of  particular 
cases.  Thus  the  grantor  of  a  way  over  his  land  may  be 
bound  by  covenant  to  keep  the  same  in  repair,  or  the  owner 
of  the  soil  may  be  bound  by  prescription  to  support  and 

1  Gerrard  v.  Cooke,  2  Bos.  &  P.  n.  r.  109 ;  Osborn  v.  Wise,  7  Carr.  &  P.  761  ; 
D.  8,  1,  10  ;  1  Fournel,  Traite'  du  Voisinage,  258  ;  Wynkoop  v.  Burger,  12  Jdins- 
222 ;  Doanc  v.  Badger,  12  Mass.  65,  70  ;  Atkins  v.  Bordman,  2  Mete.  457. 

2  Smith  V.  Rome,  19  Geo.  92  ;  Brown  v.  Stone,  10  Gray,  65  ;  Appleton  v.  Fuller- 
ton,  1  Gray,  186 ;  Maxwell  v.  M'Atee,  9  B.  Mon.  20 ;  Bean  v.  Coleman,  44  N. 
H.  539. 

2  Lyman  v.  Arnold,  5  Mason,  198. 

*  Taylor  v.  Whitehead,  2  Doug.  745  ;  Bullard  v.  Harrison,  4  Manle  &  S.  387  ; 
Miller  v.  Bristol,  12  Pick.  550;  Holmes  v.  Seely,  19  Wend.  507;  Capers  v. 
M'Kce,  1  Strobh.  168;  Williams  v.  Saftbrd,  7  Barb.  309;  Bakeman  ?;.  Talbot, 
31  N.  Y.  372. 

^  Taylor  v.  Whitehead,  2  Doug.  745  ;  Campbell  v.  Race,  7  Cush.  408  ;  Bul- 
lard V.  Harrison,  4  Maulc  &  S.  387;  Holmes  v.  Seely,  19  Wend.  507;  3  Dane, 
Abr.  258;  State  v.  Northumberland,  44  N.  H.  631. 

*i  Williams  v.  Saflbrd,  7  Burl).  309. 


Sect.  5.]  RIGHTS    OF   LAXD-OWXER,   ETC.    IN   LAND.  255 

maintain  tlic  way.^  If  the  public  locate  a  way  across  an 
existing  watercourse,  the  public  must  maintain  a  bridge 
across  tlie  same,  and  may  not  stop  the  watercourse.  But  if 
the  owner  of  the  soil  constructs  a  watercourse  under  the 
highway  already  existing,  he  must  keep  the  bridge  over  the 
same  in  repair,  or  be  liable  to  indictment.^  And  if  one  has 
a  right  of  way  across  the  land  of  another,  which  is  not 
limited  and  defined,  and  the  owner  of  the  land  obstruct  the 
same,  the  owner  of  the  way  may  pass  over  the  adjacent 
lands  of  such  land-owner,  doing  no  unnecessary  damage 
thereby .'5  And  if  the  way  is  claimed  and  enjoyed  as  one  of 
necessity,  and  the  way  previously  in  use  shall  be  obstructed 
without  the  fault  of  the  owner  of  it,  by  flood,  for  instance,  it 
is  stated  by  some  authorities  that  he  may,  if  necessary,  pass 
over  other  lands  of  the  owner  of  the  soil  of  such  way,  doing 
no  unnecessary  damage  thereby.'* 

Mr.  Tudor,  upon  the  strength  of  a  case  cited  by  counsel 
in  Henn's  case,'^  says  :  "If  a  way  becomes  impassable 
through  want  of  repairs  which  ought  to  have  been  done 
by  the  owner  of  the  land,  the  owner  of  the  dominant  tene- 
ment may,  it  seems,  justify  his  trespass  by  deviating  from  the 
ordinary  track."  "^ 

Tlie  case  from  Sir  William  Jones  was  this.  It  was  trespass 
qu.  cl.  The  defendant  pleaded  a  right  of  way  by  a  "  common 
footpath  through  the  close."  The  plaintiff  replied, 
that  the  defendant  went  out  of  the  path.  The  *de-  [*198] 
fendant  rejoined,  that  the  footpath  was  founderous, 
&c.,  "  in  default  of  tlie  plaintiff,  who  ought  to  amend  it," 
and  therefore  he  passed  along  as  near  the  path  as  he  could. 
"  And   this   was   resolved   a   good  plea   and  justification." 

1  Doane  v.  Badger,  12  Mass.  65,  70;  Taylor  v.  Wliitehead,  2  Doug.  745. 

2  Perley  v.  Chandler,  6  Mass.  454. 

3  Leonard  v.  Leonard,  2  Allen,  543 ;  Farnum  v.  Piatt,  8  Pick.  339. 

*  Holmes  v.  Seoly,  19  Wend.  507  ;  Woolr.  Ways,  51.  See  Taylor  v.  White 
head,  2  Doug.  749 ;  Capers  v.  M'Kee,  1  Strobh.  168. 

5  Henn's  ease,  W.  Jones,  296. 

6  Tud.  Lead.  Cas.  127. 


256  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.  [Cir.  II. 

"Whether  callhig  it  a  "  common  footpath  "  took  this  out  of 
the  category  of  private  ways,  is  not  stated. 

5.  Several  of  the  questions  involved  in  the  foregoing 
propositions  were  considered  in  Williams  v.  Safford.  It  was 
there  held,  that  the  owner  of  a  private  way  had  no  right  to 
go  upon  other  land  than  the  way  itself,  although  the  owner 
of  the  land  shall  have  put  obstructions  in  the  way.  The  law 
gives  the  owner  of  the  way  no  remedy  but  by  abating  the 
nuisance,  or  an  action  for  damages.  The  grantee  of  a 
private  way  is  himself  bound  to  keep  it  in  repair.  He  alone 
has  the  right  of  using  it.  He  alone  can  prosecute  for  an 
obstruction  of  it.  "In  Taylor  v.  Whitehead,"  says  Willard, 
J.,  "  Buller,  J.  observes  that,  if  the  way  pleaded  in  that 
case  had  been  a  way  of  necessity,  the  question  whether  in 
case  it  became  founderous  the  owner  might  go  extra  viam 
would  have  required  consideration.  This  dictum  has  given 
rise  to  the  intimation,  in  Woolrych  on  Ways,^  and  of  Nelson, 
C.  J.,  in  Holmes  v.  Seely,  that  '  there  is  a  distinction  be- 
tween a  private  way  by  grant  and  one  of  necessity,  resting 
upon  the  ground  that  the  one  is  the  grant  of  a  specific  track 
over  the  close,  while  the  other  is  a  general  right  of  way  over 
it  ;  the  one  an  express  specific  grant,  the  other  a  more 
general,  implied  one.'  It  is  believed,  however,  that  there 
is  no  such  distinction  between  them.  A  private  way  of  ne- 
cessity is  nothing  else  but  a  way  by  grant.  Such  way  does 
not  give  the  owner  a  right  to  go  at  random  over  the  entire 
close.  He  has  a  right  merely  to  a  convenient  way,  due 
regard  being  had  to  the  convenience  of  both  parties.  But 
after  the  way  has  been  once  assigned,  or  selected,  it  rests  on 
the  same  footing  as  any  other  way  by  grant,  and 
[*199]  both  *parties  are  bound  by  it ;  the  grantor  not  to 

obstruct  it,  and  the  grantee  to  be  confined  to  it 

It  makes  no  difference  whether  the  road  was  obstructed  by 
the  plaintiff  or  a  stranger,  or  by  the  act  of  God.  In  neither 
case  can  the  defendant  justify  a  trespass  extra  viam 

1  Woolr.  Ways,  51. 


Sect.  5.]    .        RIGHTS   OF   LAND-OWNER,   ETC.   IN   LAND.  257 

The  same  doctrine  applies  with  respect  to  a  private  road  by 
prescription,  that  governs  in  the  case  of  grants."  ^ 

6.  The  grant  of  a  parcel  of  land  bounded  upon  a  passage- 
way gives  the  grantee  a  right  of  way  over  the  same,  but  not 
a  right  to  take  and  carry  away  the  materials  thereof.  But 
he  would  have  a  right  to  use  the  sand,  gravel,  stone,  &c., 
within  the  passage-way  for  grading,  fitting,  and  repairing  it.^ 

And  where  one  owning  the  soil  of  a  way,  upon  which  his 
own  house  stood,  granted  to  the  owner  of  another  house 
which  abutted  thereon,  a  right  to  pass  over  the  same  as  a 
foot  or  carriage  way  for  twenty  yards  from  H.  Street,  it  was 
held  that  such  grantee  might  make  the  way  dry  and  safe  for 
use  in  a  manner  most  convenient  to  himself,  provided  he  did 
not  thereby  cause  inconvenience  to  his  grantor.  And  it  was 
accordingly  held,  that  he  might,  for  that  purpose,  lay  a  flag- 
stone at  his  door  within  the  passage-way.^ 

7.  But  a  grant  of  a  right  of  ingress  and  regress  over  land, 
and  of  fishing  and  fowling  thereon,  gives  no  right  to  take 
wood,  grass,  or  any  other  thing  properly  appertaining  to  the 
ownership  of  the  soil.* 

8.  The  grant  of  a  way  to  carry  coals  gives  such  grantee  a 
right  to  lay  down  such  tracks  in  the  grantor's  land,  between 
the  termini  of  the  way,  as  are  usually  adopted  for  that  pur- 
pose, provided  the  same  are  necessary  to  enable  the  grantee 
to  carry  out  the  purposes  of  the  grant.^ 

*So  where  there  was  a  grant  of  land  reserving  the  [*200] 
mines,  with  a  right  of  necessary  and  convenient  ways 
for  the  purpose,  "  and  particularly  of  laying,  making,  and 
granting  wagon-ways  in  and  over  the  said  premises,  or  any 
part  thereof."  It  was  held  that  this  was  limited  to  such 
ways  as  were  necessary  to  get  at  and  remove  the  mineral. 
Nor  would  the  grantee  of  the  land  have  any  cause  of  action 

1  Williams  v.  Safford,  7  Barb.  309.     Sec  also  Boyce  v.  Brown,  7  Barb.  80. 

2  Phillips  V.  Bowers,  7  Gray,  21. 

3  Gerrard  v.  Cooke,  2  Bos.  &  P.  n.  k.  109. 
*  Emans  v.  Turnbull,  2  Johns.  313. 

6  Senhouse  v.  Christian,  1  T.  R.  560. 
17 


258  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.     •     [Cn.  II. 

by  reason  of  constructing  such  a  way  upon  the  land,  though 
intended  to  be  used  for  other  purposes.  But  if  tlie  road 
actually  made  be  not  of  the  description  mentioned  in  the 
deed,  the  owner  of  the  soil  would  have  a  right  of  action 
therefor. 1 

9.  Questions  have  occasionally  arisen  in  respect  to  substi- 
tuting one  way  for  another,  and  how  far,  where  this  has  been 
done,  it  is  binding  upon  the  parties.  The  head-note  of  the 
case  of  Pope  v.  Devereux  is  in  these  words  :  "  Evidence  of 
an  executed  oral  agreement  between  the  owners  of  the  domi- 
nant and  servient  tenements,  to  discontinue  an  old  way  and 
substitute  a  different  one,  is  competent  evidence  of  a  surren- 
der of  the  old.  way."  ^  And  in  the  case  of  Smith  v.  Lee,  the 
language  of  the  judge,  though  it  may  be  considered  as  some- 
what obiter,  is  :  "  "When  a  right  of  way  in  a  certain  locality 
exists,  it  may  be  changed  by  the  verbal  agreement  of  the  par- 
ties in  interest,  and  when  the  change  is  actually  made,  and 
a  new  way  is  thus  adopted  by  them,  it  fixes  and  determines 
their  respective  rights."  ^ 

It  was  held  by  the  same  court,  that,  where  one  undertook 
to  change  a  way,  which  had  been  acquired  by  prescription, 
over  his  land,  a  part  of  which  land  he  had  sold  to  B.,  for  the 
purpose  of  relieving  the  part  so  conveyed  from  the  encum- 
brance of  the  way,  but  by  mistake  he  made  the  new  way, 
for  a  part  of  the  distance,  over  B.'s  land,  so  purchased  by 
him,  and  the  same  was  used  fifteen  years  ;  whether  this 
shall  be  an  effectual  substitution  by  which  the  parties  shall 
be  bound,  depended  upon  whether  it  was  known  and  acqui- 
esced in  by  B.  If  it  was,  he  would  be  bound  by  it.  If  he 
did  not  know  it,  no  use,  short  of  twenty  years,  would  make 
it  valid  and  binding  upon  the  owner  of  the  land.* 

The  case  of  Crounse  v.  Wemple  involved  the  question  of 

1  Durham  &  Sunderland  K.  R.  Co.  v.  Walker,  2  Q.  B.  940,  9GG ;  Bowes  i;. 
Ravens  worth,  15  C.  B.  .512. 

2  Pope  V.  Devereux,  5  Gray,  409. 
8  Smith  V.  Lee,  14  Gray,  473. 

*  Gage  V.  ritts,  8  Allen,  531. 


Sect.  5.]  EIGHTS    OF   LAND-OWNER,   ETC.   IN   LAND.  259 

a  substitution  of  one  way  for  another,  though  the  vague 
manner  in  which  the  opinion  is  given  can  aid  but  little  in 
settling  the  principle  upon  which  other  like  cases  are  to  be 
determined.  In  that  case  the  way  in  question  was  one  from 
a  highway  to  a  mill,  passing  through  a  swamp.  Tlie  owner 
of  the  way  used  a  new  way  a  part  of  the  distance,  so  as  to 
avoid  the  swamp,  and  it  was  held  that  he  did  not  thereby 
lose  his  prescriptive  right  over  the  other  parts  of  the  way. 
Nor  would  it  affect  his  right  that  the  way  had,  by  reason  of 
a  new  way  being  opened,  ceased  to  be  of  as  mucli  importance 
to  him  as  it  once  had  been.  A  part  of  the  charge  of  the 
judge  to  the  jury  who  tried  the  case,  and  which  seems  to 
have  been  approved  by  the  Court  of  Appeals,  was,  "  that  it 
was  competent  for  the  owner  of  the  right  of  way  and  of  the 
land  over  which  it  runs,  to  alter  its  location,  and  wdien  it  is 
changed  it  was  for  the  jury  to  say  whether  such  change  was 
intended  to  be  a  permanent  one  or  merely  temporary,  and  if 
the  new  way  has  been  used  by  the  party  owning  the  easement, 
and  the  owner  of  the  land  forbids  the  use  of  the  new  road, 
if  the  right  to  use  it  exists  by  license,  the  owner  of  the  way 
may  go  back  to  the  old  road.  But  if  such  change  was  the 
result  of  an  agreement  to  make  a  permanent  change,  then 
the  right  to  change  back  did  not  attach,  in  the  event  of  the 
owner  of  the  land  closing  the  new  way."  In  other  words, 
it  would  seem,  though  not  so  directly  ruled,  that  in  the 
latter  case  the  original  way  is  lost  by  abandonment,  though 
the  new  way  has  not  been  enjoyed  long  enough  to  give  a 
prescriptive  right  to  the  same,  if  this  case  is  to  stand  as 
law.i 

If  it  was  intended  to  say  that  one  who  has  a  definite  way 
over  another's  land  can  excliange  that  with  the  owner  of 
the  land  for  another  definite  way  across  hi^  land,  by  a  mere 
parol  agreement,  followed  by  an  enjoyment  of  the  new 
way  for  less  than  twenty  years,  and  thereby  lose  his  title 
to  the  first  and  gain  a  legal  title  to  the  second,  as  of  an 

1  Crounsc  v.  Wemple,  29  N.  Y.  540. 


2G0  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cn.  11. 

[*201]  *incorporeal  hereditament,  it  seems  to  be  doing 
violence  to  the  notion,  tliat  such  an  independent 
easement  can  only  be  created  and  acquired  by  deed  of  grant, 
as  well  as  to  modern  English  authorities.  If  I  cannot  ac- 
quire a  right  of  way  as  appurtenant  to  my  land  over  my 
neighbor's  land  without  a  deed,  where  the  consideration 
which  I  pay  him  therefor  is  a  sum  of  money,  or  an  article 
of  merchandise,  would  it  be  otherwise  if  I  paid  for  it  by  giv- 
ing up  to  him  an  interest  in  land  like  another  easement,  even 
in  his  own  land  ?  Could  A  acquire  a  right  of  way  as  an  ap- 
purtenant to  Black  Acre,  over  another's  land  without  a  deed, 
by  giving  in  exchange  by  parol  a  right  to  maintain  a  trench 
across  other  lands  of  the  same  man  ? 

Several  of  the  authorities  upo^i  the  subject  are  collected 
by  Woolrych,  and,  althougli  cases  have  occurred  where  the 
stoppage  of  one  way  and  the  opening  of  another  have  been 
held  to  be  a  license  to  use  such  new  way,  it  was,  after  all,  a 
revocable  license,  and  the  party  was  thereupon  remitted  to 
his  original  right  of  way.  Among  the  cases  cited  was  that  of 
Reignolds  v.  Edwards,^  and  of  Home  v.  Widlake.^ 

The  case  of  Lovell  v.  Smith  expressly  holds  that  a  parol 
agreement  to  substitute  a  new  way  for  an  old  prescriptive 
way,  though  followed  by  a  discontinuance  of  tlie  use  of  the 
old  way,  would  not  amount  to  an  abandonment  of  it.^ 

Nor  is  the  doctrine  sustained  by  cases  like  that  of  Larned 
V.  Larned,'^  where  a  way  gained  by  dedication  has  been  given 
up  in  favor  of  another  way  dedicated  in  its  stead,  since  a 
dedication  neither  requires  a  formal  grant  nor  a  long-con- 
tinued enjoyment  to  give  it  effect. 

In  the  case  of  Reignolds  v.  Edwards,  the  owner  of  the 

land  over  which  the  defendant  had  a  right  of  way  fenced  it 

up,  but  opened  another,  which  the  defendant  used 

[*202J    for  *several  years,  when  the  owner  of  the  land  shut 

1  Woolr.  Ways,  22,  51  ;  Reignolds  v.  Edwards,  Willcs,  282. 

2  Home  V.  Widliike,  Yelv.  141. 

8  Lovell  V.  Smith,  .3  C.  B.  n.  s.  120. 

*  Larned  o.  Larned,  U  Mete.  421  ;  2  Waslib.  Real  Prop.  57. 


Sect.  5.]  RIGHTS    OF   LAND-OWNER,    ETC.    IN   LAND.  2G1 

up  the  new  way,  and  tlie  defendant,  having  occasion  to 
use  it,  broke  down  the  fence  and  passed  over  the  new  way. 
But  the  court  say  :  "  This  new  way  was  only  a  way  by  suf- 
ferance, and  either  party  might  determine  it  at  his  pleasure ; 
and  the  plaintiff,  in  this  case,  has  determined  liis  will  by 
fastening  the  gate,  and  so  the  defendant  ought  to  have  had 
recourse  to  his  old  way." 

The  case  of  Hamilton  v.  White,  though  in  many  respects 
like  some  of  those  cited  above,  does  not  seem  to  be  very  satis- 
factory, as  settling  the  question,  either  way.  But  it  does 
not  hold  that  there  can  be  a  valid  and  effectual  substitution 
of  one  way  for  another  by  parol,  whereby  the  first  is  extin- 
guished and  the  second  becomes  a  permanent  easement  in 
the  servient  tenement,  though  followed  by  use  for  less  than 
twenty  years. 

In  that  case,  one  had  a  right  of  way  by  prescription  from 
a  highway  to  his  land,  over  the  plaintiff's  land.  By  agree- 
ment between  the  parties,  this  was  changed,  the  first  one 
closed  and  another  opened,  and  was  used  for  ten  or  twelve 
years.  This  way  lay  across  a  ditch  or  stream,  over  which 
was  a  bridge.  The  plaintiff  took  up  this  bridge,  leaving  the 
way  otherwise  open  as  usual,  and  the  defendant,  having  oc- 
casion to  use  it,  passed  along  the  way  to  the  stream,  and, 
finding  the  bridge  gone,  threw  in  earth,  over  which  he 
passed,  though  forbidden  by  the  owner,  and  the  owner  of 
the  land  brought  trespass. 

The  court,  Rnggles,  C.  J.,  referring  to  Reignolds  v.  Ed- 
wards, says  :  "  But  the  difference  between  that  case  and  the 
present  is,  that  the  new  way  in  the  present  case  remained 
open.  The  bridge  across  the  ditch  had  been  removed,  but 
the  way  was  not  fenced  up,  and  the  defendants  in  passing 
it  were  not  compelled  to  break  down  or  remove  any  wall, 
fence,  or  enclosure."  He  also  cites  Home  v.  Widlake,  above 
cited,  and  dwells  upon  the  fact  that  the  plaintiff,  instead  of 
objecting  to  the  use  of  the  new  way,  and  offering 
*the  use  of  the  old  in  its  stead,  objected  to  the  de-   [*203] 


262  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  II. 

fendant's  using  cither,  and  denied  his  right  to  any  way, 
when  in  fact  the  defendant  had  a  right  of  way  over  the 
land.  He  adds :  "  If  it  be  admitted  that  the  right  to  the 
new  track,  not  being  created  by  grant,  nor  acquired  by  user 
of  twenty  years,  was  held  at  the  will  of  the  plaintiff,  he  ought 
not  to  be  permitted  to  put  an  end  to  that  will,  without  open- 
ing the  old  route  or  consenting  that  the  defendants  might 

use  it If  he  chose  to  put  an  end  to  the  defendants' 

right  of  passing  by  the  new  way,  he  should  have  opened  the 
way  to  which  the  defendants  had  a  lawful  title.  By  denying 
the  defendants'  right  of  way  altogether,  the  plaintiff  showed 
his  intention  of  putting  the  controversy  between  himself  and 
the  defendants,  on  the  ground  that  the  defendants  had  no 
right  at  all ;  and  on  that  point  the  cause  was  tried. "^  • 

The  case,  therefore,  obviously  turns  upon  the  peculiar  cir- 
cumstances under  which  the  way  was  used,  and  does  not,  in 
terms  or  by  implication,  affirm  that  the  owner  of  the  way  had 
become  entitled  to  the  new  one,  by  the  way  of  substitution 
or  exchange,  as  a  permanent  easement. 

■  It  is  more  lilie  the  case  where  the  owner  of  the  land  over 
which  another  has  a  right  of  way  should  put  an  obstruction 
in  it  at  some  point,  and  the  owner  of  the  way,  having  occa- 
sion to  pass  over  it,  should  avoid  such  obstruction  by  going 
upon  the  adjacent  land  of  the  servient  tenement,  which  some 
authorities,  as  has  been  before  stated,  maintain  he  might  do. 

And  though  not  directly  in  point,  the  language  of  Patte- 
son,  J.,  in  Payne  v.  Shedden,  in  applying  the  doctrine  of  the 
statute  of  2  &  3  Wm.  IV.  c.  71,  has  a  bearing  upon  the 
question  examined  above.  "  So  if,  instead  of  the  direct 
path  from  A  to  B,  another  track  over  the  plaintiff's  land 
from  A  to  C,  and  thence  to  B,  had  been  substituted 
[*204]  by  parol  *agrcement  of  the  parties  for  an  indefinite 
time,  yet  the  user  of  this  substituted  line  may  be 
considered  as  substantially  an  exercise  of  the  old  right,  and 
evidence  of  the  continued  enjoyment  of  it."     Tliis  was  pre- 

1  Iliimilton  V.  Wliitc,  1  Scld.  9.     Sec  s.  c,  4  Barb.  60. 


Sect.  5.]  RIGHTS    OF   LAND-OWNER,    ETC.    IN   LAND.  263 

faced  by  the  remark,  that  "the  agreement  to  suspend  the 
enjoyment  of  the  right  does  not  extinguish,  nor  is  it  incon- 
sistent with  the  right."  ^ 

And  in  Carr  v.  Foster,  in  speaking  of  the  above  case,  he 
says  :  "  I  thought  there,  that  if  I  have  a  riglit  over  another's 
land,  and  he  for  a  time  gives  me  a  consideration  for  ceasing 
to  exercise  it,  I  enjoy  the  right  while  receiving  the  compen- 
sation." ^ 

1  Payne  v.  Slieddcn,  1  Mood.  &  R.  382. 

2  Carr  v.  Foster,  3  Q.  B.  581. 


[*205]  ^CHAPTER    III. 

OF   EASEMENTS   AND   SERVITUDES   OF   WATER. 

Sect.    1.  Of  Property  in  Streams  and  Watercourses. 

Sect.    2.  Of  Right  of  Irrigation. 

Sect.    3.  Of  the  Use  of  Water  for  MUls. 

Sect.    4.  Of  Rights  in  Artificial  Watercourses. 

Sect.    5.  Of  several  special  Laws  as  to  Mills. 

Sect.    6.  Of  Rights  in  Rain  and  Surface  Water. 

Sect.    7.  Of  Rights  in  Subterranean  Waters. 

Sect.    8.  Of  Rights  to  Eaves'  Drip. ' 

Sect.    9.  Of  Rights  of  Passage  in  public  Streams. 

Sect.  10.  Of  Rights  in  Water  by  Custom. 

Sect.  11.  Of  Rights  of  Fishery. 

Sect.  12.  Of  Servitudes  of  Water  by  the  Civil  Law,  &c. 

SECTION  I. 

OF  PROPERTY. IN  STREAMS  AND  WATERCOURSES. 

1.  Easements  and  servitudes  in  water  classed  by  the  Civil  Law. 

2.  Easements  and  servitudes  imply  two  estates. 

3.  4.  Of  water  and  its  use  as  the  subject  of  property. 

5.  Classification  of  the  subject  in  respect  to  easements. 

6.  Watercourses,  &c.  defined. 

7.  Waters  of  springs,  wells,  and  surface-drains. 

8.  Streams  as  part  of  the  freehold. 

9.  The  use  of  water  neither  public  nor  exclusive. 

10.  Of  the  right  to  the  flow  of  water  as  a  natural  easement. 

11.  Of  riparian  rights  to  the  flow  and  use  of  water. 

12.  Action  lies  for  an  unreasonable  use  of  water. 

13.  Of  the  various  uses  of  water,  and  when  it  may  be  diverted. 

14.  Of  the  ownership  of  a  stream  by  opposite  riparian  proprietors. 

15.  What  use  of  water  takes  precedence  of  other  uses  as  a  right. 

16.  Of  the  right  to  havo  water  flow  from  one's  premises. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  265 

*17.  Who  to  keep  the  channel  of  a  watercourse  clear.  [*206] 

18.  Of  the  right  to  have  water  in  a  pure  and  natural  state. 

19.  How  far  a  right  to  receive  and  discharge  water,  an  easement  to  land. 

20.  How  and  to  what  extent  easements  of  water  may  be  acquired. 

21.  The  divisions  of  the  subject  of  easements  of  water. 

1.  Another  class  of  the  praedial  servitudes,  known  to  the 
civil  law  as  rural  or  rustic,  in  distinction  from  those  called 
urban,  relate  to  "  the  conducting  and  using  of  water."  It 
embraces  a  variety  of  forms,  bearing  different  specific  names. 
And,  besides  these,  there  were  urban  servitudes  connected 
with  the  conducting  of  water,  such  as  that  of  eaves'  drip, 
called  Stillicidium,  and  that  of  a  sewer  of  an  adjacent  own- 
er's estate. 1 

It  is  proposed  to  treat  of  both  these  classes  under  one 
head,  under  the  name  of  easements  and  servitudes,  and  to 
apply  to  them  the  rules  of  the  common  law. 

2.  It  will  be  borne  in  mind,  that,  as  by  a  servitude  or 
easement  is  meant  a  right  which  is  granted  for  the  advantage 
of  one  piece  of  land  in  or  over  another,  it  always  presupposes 
two  parcels,  and  these  belonging  to  different  proprietors,  one 
of  which  is  burdened  with  the  servitude  called  the  servient, 
and  one  for  the  advantage  of  which  the  sen'itude  is  con- 
ferred, called  the  dominant  estate.^ 

3.  As  water,  from  its  nature,  is  ordinarily  passing  from  a 
higher  to  a  lower  level,  till  it  reaches  the  point  wliere  it  is 
lost  by  absorption,  evaporation,  or  discharge  into  the  ocean  ; 
and  inasmuch  as  its  use  may  not  only  be  available  when 
wholly  enjoyed  upon  the  estate  of  a  land-owner,  but  its 
benefit  may  often  be  derived,  more  or  less  immediately,  from 
its  being  managed  or  controlled  by  such  land-owner,  in  its 
passage  through  the  estate  of  another,  —  it  becomes  impor- 
tant to  define  what  a  land-owner's  rights  and  duties  are  in 
respect  to  water  found  within  his  premises.  Tliis 
becomes  *the  more  important,  in  order  to  discrimi-  [*207] 

1  Kauff.  Mackeldey,  342-345  ;  Wood,  Inst.  Civ.  Law,  91-93;  1  Brown,  Civ. 
Law,  182. 

2  Kauff.  Mackeldey,  335  ;  1  Brown,  Civ.  Law,  182. 


266     ■  THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

nate  between  what  rights  one  may  claim  as  naturally  inci- 
dent to  the  ownership  of  his  estate,  and  those  to  which  he 
is  entitled,  or  is  subject,  in  respect  to  such  ownership,  in 
its  connection  with  other  estates,  and  constituting,  in  respect 
to  his  own,  a  servitude  or  easement. 

4.  As  forming  the  subject  of  property,  in  connection  with 
the  realty,  water  may  be  viewed  in  two  lights;  —  one,  as 
constituting  one  of  tlie  elements  of  which  an  estate  is  com- 
posed, and  giving,  by  its  qualities  and  susceptibilities  of  use, 
a  value  to  such  estate  ;  the  other,  as  being  valuable  alone 
for  its  use,  to  be  enjoyed  in  connection  with  the  occupation  of 
the  soil. 

In  the  latter  sense,  it  constitutes  an  incorporeal  heredita- 
ment, to  which  the  term  easement  is  applied.  But  in  neither 
light  is  it  tlie  water  itself  of  which  property  is  predicated. 
And  it  is  of  its  use  alone  as  an  element,  and  the  right  to 
enjoy  it  in  connection  with  some  portion  of  the  soil,  that  it 
is  proposed  to  treat  in  the  present  chapter. ^ 

5.  In  considering,  then,  what  are  the  rights  of  a  land- 
owner in  respect  to  the  use  of  water  which  naturally  belongs 
to  his  freehold,  in  order  to  see  what  will  make  his  a  domi- 
nant or  servient  estate  in  respect  to  acquiring  new  rights 
or  losing  those  originally  belonging  to  it,  resulting  from  the 
use  of  the  water  by  himself  or  others,  it  will  be  necessary 
to  treat  the  subject  under  different  heads.  And  it  is  pro- 
posed, for  purposes  of  general  classification,  to  consider, — 
1st.  The  rights  of  the  land-owner  as  such,  or  as  the  owner 
of  works  to  be  operated  by  the  same,  to  running  streams 

or  watercourses  generally  ;  2d.  The  rights  and 
[*208J  *dutics  of  persons  interested  in  surface  or  natural 

drainage  ;  3d.  Their  rights  in  respect  to  under- 
ground or  percolating  waters. 

1  Gould  V.  Boston  Duck  Co.,  13  Gray,  443 ;  Gary  v.  Daniels,  8  Mctc.  466,  480 ; 
Campljell  v.  Smith,  3  Ilalst.  140,  145;  Gardner  v.  Trustees  of  Village  of  New- 
burgli,  2  Johns.  Ch.  162 ;  ITenrlriek  v.  Cook,  4  Ga.  241,  25.'5 ;  Plumleigh  v.  Daw- 
eon,  1  Gilni.  .')44  ;  Woolr.  Waters,  117  ;  Stein  v.  Burden,  29  Ala.  127  ;  s.  c,  24 
Ala.  130;  Burden  v.  Steiii,  27  Ala.  104;  Crittenton  i;.  Alger,  1 1  Mete.  281;  5 
Durauton,  Cours  dc  Droit  Fram/ais,  200  ;  Davis  v.  Gctclieli,  50  Maine,  604. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  267 

6.  The  term  Watercourse,  in  this  classification,  is  intended 
to  include  all  running  streams  of  water,  though  writers  often 
describe  these  by  different  distinctive  terms,  such  as  Rivers, 
Brooks,  and  the  like. 

Woolrych,  borrowing  from  Callis,  defines  a  river,  "A 
running  stream,  pent  in  on  either  side  with  walls  and  banks, 
and  it  bears  that  name  as  well  where  the  waters  flow  and 
reflow,  as  where  they  have  their  current  one  way."  ^ 

Callis  defines  a  sewer,  "A  fresh-water  trench,  compassed 
in  on  both  sides  with  a  bank,  and  is  a  small  current,  or  little 
river." 

"  A  gutter  is  of  less  size,  and  of  a  narrower  passage  and 
current,  than  a  sewer  is."  "  A  seiuer  is  a  common  public 
stream, —  a  gutter,  a  straight  private  running  water." 

"  A  ditch  is  a  kind  of  current  of  waters  in  infimo  gradu.''^ 
But  the  law  only  recognizes  ditches  as  such,  "  which  have 
a  kind  of  current,  and  which  in  some  sort  partake  with 
rivers."  ^ 

The  term  "watercourse,"  when  used  in  a  grant,  may  mean 
the  channel  through  which  water  flows,  or  the  stream  that 
flows  through  it,  and  whether  it  be  the  one  or  the  other 
depends  upon  the  context.  If  used  in  the  first  sense,  it  is  a 
corporeal  hereditament ;  if  in  the  second,  it  is  an  incorporeal 
one.^  And  it  was  held  that  a  grant  of  "  a  river  as  it  winds 
and  turns,  including  the  same,"  passed  no  land,  recognizing 
the  doctrine,  as  stated  by  Coke,  that,  "  if  a  man  grant  aquam 
suam,  the  soil  shall  not  pass,  but  the  piscary  within  the  water 
passeth  therewith."  ■^ 

A  stream  may  acquire  the  name  of  a  river,  in  the 
channel   *of    which,   at   some   seasons   of    extreme  [*209] 
drought,  no  water  flows.^ 

1  Woolr.  Waters,  31  ;  Callis,  Sewers,  54. 

2  Callis,  Sewers,  57,  58,  59. 

8  Doc  V.  Williams,  11  Q.  B.  688,  700;  Woolr.  Waters,  117. 
.    *  Jackson  v.  Halstead,  5  Cow.  219;  Co.  Litt.  4  h. 

s  Reynolds  v.  M'Arthur,  2  Pet.  417,438;  Ashley  v.  Wolcott,  11   Cush.  195; 
Bangor  r.  Lansil,  51  Maine,  525. 


268  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.         [Cii.  III. 

And,  as  a  general  proposition,  wherever  there  is  a  steady, 
uniform  current  of  water,  it  constitutes  a  river,  though  this 
does  not  include  a  lake  through  which  there  is  a  current 
from  its  head  to  its  outlet.^  And  where  a  river  is  divided 
by  an  island  or  intervening  parcel  of  land,  each  branch 
becomes  a  watercourse  with  all  its  incidents,  and  this  though 
the  island  be  formed  in  the  stream,  and  there  would  be  a 
filum  aqucc  to  each  of  the  streams  or  watercourses.^ 

To  maintain  the  right  to  a  watercourse  or  brook,  it  must 
be  made  to  appear  that  the  water  usually  flows  in  a  certain 
direction,  and  by  a  regular  channel  with  banks  or  sides; 
mere  surface  drainage  at  certain  seasons  of  the  year,  when 
the  water  is  high,  is  not  a  stream  or  brook.^ 

Among  the  definitions  of  a  watercourse  which  may  be 
found  in  the  books,  the  following  by  Bigelow,  J.,  in  Luther 
V.  Winnisimmet  Company,  is  perhaps  the  most  accurate 
and  compendious :  "  A  stream  of  water  usually  flowing  in 
a  definite  channel,  having  a  bed,  sides,  or  banks,  and  usually 
discharging  itself  into  some  other  stream  or  body  of  water. 
To  constitute  a  watercourse,  the  size  of  the  stream  is  not 
important ;  it  might  be  very  small,  and  the  flow  of  the  water 
need  not  be  constant.  But  it  must  be  something  more  than 
a  mere  surface  drainage  over  the  entire  face  of  a  tract  of 
land,  occasioned  by  unusual  freshets  or  other  extraordinary 
causes."^  It  was  accordingly  held,  in  another  case,  that 
"  the  accustomed,  though  not  continuous,  flowage  of  waters" 
(in  this  case  from  springs)  "  is  a  stream  in  the  eye  of  the 
law,  and  its  channel  is  no  more  to  be  obstructed  than  if  it 
was  the  channel  of  a  stream  that  never  failed."  ^  So  where 
water  rose  from  a  spring  and  ran  off  several  rods  in  a  de- 

1  State  V.  Gilmanton,  14  N.  H.  467,  476;  s.  c.  9  N.  H.  461.  , 

2  Luttrel's  Case,  4  Co.  88  ;  Trustees,  &c.  v.  Dickinson,  9  Cush.  549. 
8  Ashley  v.  Wolcott,  II  Cusli.  192;  Bangor  v.  Lansil,  sup. 

*  Luihcrv.  Winnisimmet  Co.,  9  Cush.  171,  174;  Ashley  v.  Woleott,  II  Cush. 
192;  Ward  v.  Metcalfe,  Clayt.,  cd.  1651,  96;  Shields  i;.  Arndt,  3  Green,  Ch. 
234  ;  Kaufliiiaii  v.  Griesemcr,  26  Penn.  St.  407  ;  Earle  v.  Hart,  1  Bcasl.  280,  283. 

^  Kaufi'tiian  v.  Griesemcr,  20  Tenn.  St.  407. 


Sect.  1.]       PROPERTY   IN   STREAiMS   AND   WATERCOURSES.  269 

fined  stream  with  a  current,  and  then  came  to  marshy  land, 
where  it  s[)rcad  itself  over  the  ground,  but  still  continued  to' 
flow  sluggishly  in  a  defined  bed  or  depression,  but  not  with  a 
sufficiently  strong  current  to  destroy  the  grass  or  break  the 
sod,  till  it  reached  another  owner's  land,  who  had  a  watering- 
place  for  his  cattle  which  was  supplied  by  this  water,  it  was 
held  to  be  a  watercourse  of  which  the  owner  of  the  higher 
land  had  no  right  to  stop  the  current  and  flow.^  Nor  is  it 
essential  to  a  watercourse,  that  the  banks  should  be  abso- 
lutely unchangeable,  the  flow  constant,  nor  the  water  en- 
tirely unmixed  with  earth,  nor  moving  with  any  fixed  veloci- 
ty .^  It  need  not  be  shown  to  flow  continually,  it  may  be 
dry  at  times,  but  it  must  have  a  well-defined  and  substantial 
existence.'^  It  is  immaterial  how  small  it  may  be,  if 
it  be  well  defined,  nor,  so  far  as  *the  rights  of  prop-  [*210] 
erty  of  the  land-owner  in  a  stream  of  water  are  con- 
cerned, is  it  material  whether  it  flows  above  or  below  the 
surface,  provided  it  be  an  ascertained  current  of  flowing 
water.  And  whatever  may  be  its  source,  as  soon  as  water 
becomes  a  part  of  a  natural  stream,  it  belongs  to  him  in 
whom  is  the  property  of  the  stream  itself.* 

7.  But  the  watercourses  above  described  do  not  include 
water  flowing  in  the  hollows  or  ravines  in  land,  which  is  the 
mere  surface  water  from  rains  or  melting  snows,  and  is  dis- 
charged through  these  from  a  higher  to  a  lower  level,  but 
which  at  other  times  are  destitute  of  water.  And  although, 
when  hereafter  treating  of  servitudes  which  one  parcel  of 
land  may  have  in  another  in  respect  to  surface  water,  the 
circumstance  of  there  being  outlets  for  the  same  will  be 
seen  to  be  an  important  consideration,  it  is  not  the  right  of 

1  Gillett  V.  Johnson,  30  Conn.  180. 

2  Basset  v.  Company,  43  N.  H.  578. 
»  Ashley  v.  Wolcott,  11  Cush.  195. 

*  Dudden  v.  Guardians  of  Poor,  &c.,  1  Hurlst.  &  N.  627  ;  Rawstron  v.  Taylor, 
11  Exch.  369;  Broadbent  v.  Ramsbotham,  11  Exch.  602;  Wbeatly  y.  Baugh, 
25  Penn.  St.  528;  Arnold  v.  Foote,  12  Wend.  330;  Dickinson  v.  Grand  Junc- 
tion Canal  Co.,  7  Exch.  282,  301  ;  Wood  v.  Waud,  3  Exch.  748,  779;  Eddy  v 
Simpson,  3  Cal.  249. 


270  THE   LAW   OF   EASEMENTS    AND   SERVITUDES.         [Cii.  III. 

property  in  such  waters,  or  in  their  use,  that  is  at  present 
*the  subject  of  examination.  Where  a  spring  rises  out  of 
the  ground  within  one's  estate,  in  such  a  manner  as  to 
flow  from  its  outlet  or  head  in  a  defined  current  to  the  land 
of  another  proprietor,  he  thereby  acquires  a  right  of  prop- 
erty in  the  use  of  its  water,  of  which  no  one  has  a  right 
to  deprive  him.  But  where  the  water  rose  from  subterra- 
nean sources  into  a  well  which  occasionally  overflowed, 
and  diffused  itself  upon  the  surface,  and  was  conducted  off 
in  an  artificial  channel  which  was  often  dry,  it  was  held  not 
to  come  within  the  category  of  running  water,  the  benefit  of 
which  a  lower  proprietor  could  claim  as  such.  The  same 
rule  applies  to  water  which  collects  in  low  or  swampy  places 
upon  land,  but  has  never  formed  for  itself  a  defined  channel 
by  which  it  reaches  an  existing  watercourse,  although  if  left 
to  itself  it  would  by  force  of  gravity  eventually  find 
[*211]  its  way  *into  and  help  supply  a  stream  which  is  run- 
ning through  another's  land.  The  owner  of  the 
land  in  which  water  thus  situated  is  found,  may  do  what  he 
will  with  the  same,  though  he  thereby  prevents  its  reaching 
the  land  of  another,  as  it  has  been  accustomed  thus  indirectly 
to  do.i 

In  one  casej  where  the  land  adjoining  a  highway  was 
swampy,  and  received  the  water  which  flowed  from  the  high- 
way, and  the  owner  filled  it  up  so  as  to  prevent  the  water 
any  longer  flowing  from  the  highway  on  to  it,  it  was  held 
that  he  might  lawfully  do  it.^  And  in  another  case,  the 
court  held  that  the  owner  of  land  over  which  the  surface 
water  from  another  tract  was  accustomed  to  flow,  might  pro- 
tect his  land  by  raising  it,  though  he  thereby  prevented  the 
flow  of  the  water  from  the  adjacent  tract.-"^ 

1  Broadbent  v.  R.imsbotham,  11  Exch.  602;  Rawstron  v.  Taylor,  11  Exch. 
369,  382  -  384 ;  Wadsworth,  v.  Tillotson,  1 5  Conn.  366, 373.  In.  Ashley  v.  Wol- 
cott,  1 1  Cush.  1 92,  the  court  waive  the  question  of  the  right  to  stop  the  flow  of 
the  surface  water  on  one's  land. 

■■^  Bangor  v.  Lansil,  .51  Maine,  ■'J25. 

8  Parks  V.  Newburyport,  10  Gray,  28;  post,  pp.  *225,  *355-*359,  *362. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  271 

And  yet,  if  the  doctrine  elsewhere  laid  down  is  a  sound  and 
tenable  one,  it  would  seem  that,  though  for  purposes  of  occu- 
pying a  lot  by  building  upon  it,  or  by  raising  it  iip  for  pur- 
poses of  cultivation,  the  owner  may  prevent  the  surface 
water  of  an  upper  lot  from  flowing  on  to  it,  he  may  not 
stop  it  by  a  dike  or  bank  along  the  upper  line  of  his  land, 
leaving  it  as  it  was  before  in  other  respects.^ 

Where  there  is  no  watercourse  by  grant  or  prescription, 
and  no  stipulation  between  conterminous  proprietors  of  land 
conce-rning  the  mode  in  which  their  respective  parcels  shall 
be  occupied  and  improved,  no  right  to  regulate  or  control 
the  surface  drainage  water  can  be  asserted  by  the  owner  of 
one  lot  over  that  of  his  neighbor.  The  owner  of  land  may 
occupy  it  in  such  manner  or  for  such  purpose  as  he  sees  fit, 
either  by  changing  the  surface,  or  the  erection  of  buildings 
or  other  structures  thereon,  and  this  right  is  not  restricted  or 
modified  by  the  fact  that  his  own  land  is  so  situated,  in  refer- 
ence to  that  of  adjoining  owners,  that  an  alteration  in  the 
mode  of  its  improvement  or  occupation,  in  any  portion  of  it, 
will  cause  water  which  may  accumulate  thereon  by  rains  and 
snows  falling  on  its  surface  or  flowing  on  to  it  over  the  sur- 
face of  adjacent  lots,  either  to  stand  in  unusual  quantities  on 
other  adjacent  lands,  or  pass  into  and  over  the  same  in 
greater  quantities  or  in  other  directions  than  they  are  accus- 
tomed to  flow.  Nor  is  it  at  all  material  whetlier  a  party 
obstructs  or  changes  the  direction  and  flow  of  surface 
water  by  preventing  it  from  coming  within  the  limits  of  his 
land,  or  by  erecting  barriers  or  changing  the  level  of  the  soil 
so  as  to  turn  it  off"  in  a  new  course  after  it  has  come  within 
his  boundaries.^ 

A  similar  question  to  that  discussed  above,  arose  in  a  case 
where  the  owner  of  land  adjoining  a  highway  filled  it  up, 
and,  at  one  point  where  there  had  been  a  gorge  through 

1  Sec  ])ost,  §  16,  and  cases  cited. 

2  Gannon  v.  Ilorgadon,  10  Allen,  106  ;  Luther  v.  "\'\'innisimmet  Ferry,  9  Cush 
174. 


272  THE    LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

which  tlie  water  from  the  street  escaped  on  to  liis  land,  he 
built  a  dwelling-house  stopping  the  flow  of  the  water  entirely, 
and  it  was  held  that  he  had  a  right  so  to  do,  although  it 
obliged  the  town  to  construct  a  drain  to  take  off  this  water. 
The  town  may  make  its  roads  so  that  the  water  therefrom 
may  flow  on  to  the  adjacent  lands,  and  the  land-owner  can 
only  protect  himself  by  erecting  proper  structures  on  his 
land  to  guard  against  it.^ 

The  same  principle,  under  a  somewhat  different  form,  was 
involved  in  the  decision  of  Dickinson  v.  Worcester,  where 
the  court  held  that  "  a  conterminous  proprietor  may  change 
the  situation  or  surface  of  his  land,  by  raising  or  filling  it 
to  a  higher  grade  by  the  construction  of  dikes,  the  erection 
of  structures,  or  by  the  improvements  which  cause  water 
to  accumulate  from  natural  causes  on  the  adjacent  land, 
and  prevent  its  passing  off  from  the  surface."  "  Nor  can  a 
party  gain  a  right  to  the  flow  of  surface  water  over  his 
neighbor's  land,  by  collecting  it  in  drains  or  culverts  or 
artificial  channels,  unless  he  maintains  them  for  a  length  of 
time  sufficient  to  acquire  a  right  of  easement  by  adverse 
user.  He  cannot  by  his  own  act  merely,  without  the  assent 
or  acquiescence  of  the  adjoining  owner,  change  their  relative 
rights  or  duties,  and  convert  a  flow  of  surface  water  into 
a  stream  with  all  the  legal  incidents  of  a  natural  water- 
course." The  force  of  this  latter  remark  resulted  from  the 
fact  that  the  plaintiff  had  maintained  a  ditch  for  some  time, 
into  and  through  which  the  surface  water  and  underdraining 
from- his  land  had  flowed,  which  the  defendant  had  stopped 
upon  his  own  land  below.  Had  this  been  a  permanent 
stream  of  water,  the  rights  of  the  parties  would  have  been 
entirely  different,  and  defendant  would  have  been  liable  for 
thus  stoi)ping  the  flow  of  the  water.^ 

The  recent  case  of  Earle  v.  De  Hart,  in  New  Jersey,  in- 
volves several  of  the   questions  discussed  in  the  last  few 

1  FlagK  V.  Worcester,  1.3  Gray,  GOl ;  Wheeler  v.  Worcester,  10  Allen,  603. 

2  Dickinson  v.  Worcester,  7  Allen,  19.     See  Bangor  v.  Lausil,  51  Maine,  526. 


Sect.  1.]       PROPERTY   IN    STREAMS   AND   WATERCOURSES.  273 

pages,  and  presents  a  state  of  facts  combining  somewhat  of 
the  law  of  surface  water  and  that  arising  from  springs,  in 
respect  to  constituting  watercourses,  and  being  governpd  by 
the  general  rules  relating  to  them.  The  land  in  that  case 
lay  in  the  city  of  Elizabeth.  The  plaintiff's  land  was  so 
situated  that  at  certain  seasons  of  the  year  the  water  col- 
lected upon  the  surface  in  such  quantities  as  to  discharge 
itself  through  a  certain  duct  or  channel,  uniformly  in  one 
place,  across  the  defendant's  land,  into  an  existing  gutter 
which  led  to  a  river.  The  defendant  stopped  this  duct  or 
channel  on  his  land,  and  the  plaintiff  prayed  to  have  such 
obstruction  abated.  It  was  denied  that  such  a  channel  as 
this,  in  which  water  only  occasionally  discharged  itself,  was 
a  watercourse,  within  the  eye  of  the  law.  But  the  Chan- 
cellor says  :  "  If  there  is  a  quantity  of  water  collecting  at 
different  seasons  of  the  year  on  the  complainant's  land,  to 
such  an  extent  as  requires  an  outlet  to  some  common  reser- 
voir, and  if  such  is  always  the  case  in  times  of  heavy  rain  and 
melting  of  snow,  and  if,  as  far  back  as  the  memory  of  man 
runs,  that  flow  of  water  produced  a  natural  channel  through 
the  defendant's  land,  where  such  accumulated  surplus  water 
had  always  been  accustomed  to  run,  the  right  of  the  com- 
plainant to  have  the  water  discharged  in  the  same  chan- 
nel, for  the  relief  of  her  land,  is  so  clear,  that  a  court  of 
equity  would  not  refuse  to  protect  her  right,"  (fee. 
"  But  I  *think  the  facts  admitted  in  the  answer  [*212] 
show  that  this  is  an  ancient  stream  or  watercourse, 
and  that  it  is  a  natural  watercourse  in  the  etymological  use 

of  the  term It  may  be  natural,  as  where  it  is  made 

by  the  natural  flow  of  the  water,  caused  by  the  general 
superficies  of  the  surrounding  land,  from  which  the  water  is 
collected  into  one  channel,  or  it  may  be  artificial,  as  in  case 
of  a  ditch  or  other  artificial  means  used  to  divert  the  water 
from  its  natural  channel,  or  to  carry  it  from  lands  from 
which  it  will  not  flow  in  consequence  of  the  natural  forma- 
tion of  the  surrounding  land.     It  is  an  ancient  watercourse, 


27-1  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

if  the  channel  through  which  it  naturally  runs  has  existed 
from  time  immemorial.  Whether  it  is  entitled  to  be  called 
an  ancient  watercourse,  and  as  such,  legal  rights  can  be  ac- 
quired and  lost  in  it,  does  not  depend  upon  the  quantity  of 

water  it  discharges If  the  face  of  the  country  is  such 

as  necessarily  collects  in  one  body  so  large  a  quantity  of 
water,  after  heavy  rains,  and  the  melting  of  large  bodies  of 
snow,  as  to  require  an  outlet  to  some  common  reservoir,  and 
if  such  water  is  regularly  discharged  through  a  well-defined 
channel,  which  the  force  of  the  water  has  made  for  itself, 
and  which  is  the  accustomed  channel  through  which  it  flows, 
and  has  flowed  from  time  immemorial,  such  channel  is  an 

ancient  natural  watercourse This  water  having  run 

in  the  same  course  for  more  than  twenty  years,  and  the  com- 
plainant and  those  under  whom  she  holds  having  enjoyed  it 
as  a  right  during  that  period,  in  its  present  channel,  no  one 
has  a  right  to  dam  up  the  channel,  or  to  divert  the  course  of 
the  water,  to  the  injury  of  the  complainant's  land."  ^ 

8.  In  considering,  then,  the  nature  and  extent  of  property 
in  running  water,  and  its  use  belonging  to  a  land-owner 
who,  as  such,  derives  a  benefit  from  its  enjoyment,  it  may 

be  repeated,  that  a  stream  is  a  part  of  the  freehold. 
[*213]    Every  *land-owner  has    a   property  in  the  stream 

which  flows  through  his  land,  while  he  has  no 
property  in  the  water  itself  of  which  it  is  composed,  save 
for  the  gratification  of  his  natural  or  ordinary  wants.^  And 
Lord  Campbell,  when  speaking  of  a  claim  set  up  by  the 
inhabitants  of  a  place,  of  a  right,  by  custom,  to  take  water 
from  a  spring  in  the  land  of  another,  for  domestic  purposes, 
says  :  "  The  water  which  they  claim  a  right  to  take  is  not 
the  produce  of  the  plaintiff's  close,  it  is  not  his  property,  it 
is  not  the  subject  of  property It   is   not   disputed 

1  Earle  v.  Dc  Hart,  1  Beasl.  280. 

2  Stein  V.  Burden,  29  Ala.  127  ;  s.  c,  24  Ala.  130;  Burden  v.  Stein,  27  Ala. 
104  ;  Gary  ».  Daniels,  5  Mete.  236  ;  Crittenton  v.  Alger,  11  Mete.  281 ;  Hart  v. 
Evans,  8  Penn.  St.  22. 


Sect.  1.]       PROPERTY   IN   STREAMS    AXD    WATERCOURSES.  275 

that  this  would  be  so,  with  respect  to  the  water  of  a  river,  or 
any  open,  running  stream.  We  think  it  equally  true  as  to 
the  water  of  a  spring  when  it  first  issues  from  the  ground. 
....  While  it  remains  in  the  field  where  it  issues  forth, 
in  the  ahsence  of  any  servitude  or  custom  giving  a  right  to 
others,  the  owner  of  the  field,  and  he  only,  lias  a  right  to 
appropriate  it,  for  no  one  else  can  do  so  without  committing 
a  trespass  upon  tho  field.  But  when  it  has  left  his  field,  he 
has  no  more  power  over  it  or  interest  in  it  than  any  other 
stranger."  ^ 

9.  But  still,  water,  though  an  element,  is  not  "  a  movable, 
wandering  thing,  and  must  of  necessity  continue  common 
by  the  law  of  nations,"  as  represented  by  Blackstone.^  Nor 
is  "  flowing  water  "  so  far  "  originally  puhlici  jitris,^^  that, 
tliough,  "  so  soon  as  it  is  appropriated  by  an  individual,  his 
right  is  coextensive  with  the  beneficial  use  to  which  he 
appropriates  it,  subject  to  that  right,  all  the  rest  of  the 
water  remains  puhlici  juris  "  ;  —  as  stated  by  Bailey,  J.,  in 
Williams  v.  Morland  ;  ^  if  by  that  form  of  expression 
is  meant  *that  any  one  can  appropriate  it  to  his  use  [*214] 
or  convenience,  except  as  he  is  the  owner  or  occu- 
pant of  land  in  connection  with  which  it  is  to  be  enjoyed. 

There  are,  on  the  other  hand,  in  many  of  the  cases, 
especially  the  earlier  ones,  forms  of  expression  adopted  in 
respect  to  the  rights  of  land-owners  in  the  waters  of  streams 
flowing  through  their  premises,  which  are  as  much  too 
limited  as  those  above  quoted  are  too  broad.  The  formula 
ill  which  the  law  as  to  running  water  has,  from  an  early 
date,  been  stated,  is  Aqua  curret  et  debet  currere  id  currere 
solehat.  And  the  language  of  the  yice-Chancellor  in  Wright 
V.  Howard  *  is  :  "  Without  the  consent  of  the  other  proprie- 

1  Race  V.  Ward,  30  Eng,  L.  &  Eii-  187,  192  ;  s.  c,  4  Ellis  &  B.  702,  709  ;  Tratt 
V.  Laiuson,  2  Allen,  275  ;  1  Fournel,  Traite  du  Voisinage,  319. 

-  2  Blackst.  Comm.  14-18. 

3  Williams  v.  Morlaml,  2  Barncw.  &  C.  910,  913.  See  also  Liggins  v.  Inge, 
7  Bing.  682,  692,  per  Tindal,  C.  J.     Contra,  Mason  v.  Hill,  5  Barnew.  &  Ad.  1. 

*  Wright  V.  Howard,  1   Sim.  &  S.  190,  203  ;  3  Kent,  Comm.  439;  and  lau- 


276       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

tors,  wlio  may  be  affected  by  his  operations,  no  proprietor  can 
either  diminish  tlie  quantity  of  water  which  would  otherwise 
descend  to  the  proprietors  below,  or  tlirow  the  water  back 
upon  the  proprietors  above." 

10.  Now  the  rights  of  a  riparian  proprietor  of  land,  over 
which  there  is  a  flowing  stream  of  water,  are  to  use  it  for 
any  and  all  lawful  purposes,  while  it  is  passing,  in  its  natural 
current,  over  his  land.^  But  the  specific  water  that  may  be 
thus  passing  is  not  his  property  except  through  its  use  ;  nor 
has  he  a  right  to  detain  it  otherwise,  since  the  rights  of  all 
riparian  proprietors  upon  any  stream,  in  respect  to  the  waters 
thereof,  are,  in  the  eye  of  the  law,  equal  and  the  same. 
The  obligation  of  any  one  of  these  to  suffer  it  to  flow  to 
the  proprietor  below  is  equally  stringent  and  imperative  as 
his  right  was  to  have  it  flow  to  him  from  the  proprietor 
above. 

These  rights  of  riparian  proprietors,  though  coming 
[*215]  under  *the  head  of  what  are  called  "Natural  Ease- 
ments," are  not,  in  fact,  the  result  of  any  supposed 
grant,  evidenced  by  long  acquiescence  on  the  part  of  a  supe- 
rior proprietor,  of  the  flow  of  the  water  from  his  land  to  the 
land  below.  The  right  of  enjoying  this  flow,  without  dis- 
turbance or  interruption  by  any  other  proprietor,  is  one  jure 
naturce,  and  is  an  incident  of  property  in  the  land,  not  an 
appurtenance  to  it,  like  the  right  he  has  to  enjoy  the  soil 
itself,  in  its  natural  state,  unaffected  by  the  tortious  acts  of  a 
neighboring  land-owner.^     It  is  an  inseparable  incident  to 

guage  almost  as  strong  and  unqualified  is  used  by  Denio,  J.,  in  Bellinger  v.  N. 
y.  Central  R.  R.,  23  N.  Y.  47,  though  the  facts  of  the  case  carry  an  explanation 
of  the  limitation  with  which  it  must  have  been  intended  to  be  used. 

1  Shaw,  C.  J.,  thus  defines  a  "  riparian  proprietor "  :  "  By  this  designation  I 
understand  an  owner  of  land  bounded  generally  upon  a  stream  of  water,  and  as 
such  having  a  qualified  property  in  the  soil  to  the  thread  of  the  stream,  with  the 
privileges  annexed  thereto  by  law."     Bardwell  v.  Ames,  22  Pick.  333,  355. 

-  Dickinson  v.  Grand  Junction  Canal  Co.,  7  Exch.  282,  299  ;  Rawstron  v.  Tay- 
lor, 11  Exch.  369,  382 ;  Sury  v.  Pigot,  Poph.  166  ;  Wood  v.  Waud,  3  Exch.  748, 
775  ;  Embrcy  v.  Owen,  6  Exch.  353  ;  Tyler  v.  Wilkinson,  4  Mason,  397  ;  Evans 
V.  Merriweather,  3  Scamm.  492 ;  Gardner  v.  Trustees  of  Village  of  Ncwburgh,  2 


Sect.  1.]       TEOPERTY   IN   STREAMS    AND   WATERCOURSES.  277 

the  ownership  of  land,  made  by  an  inflexible  rule  of  law  an 
absolute  and  fixed  right,  and  can  only  be  lost  by  grant  or 
twenty  years'  adverse  possession. ^  And  the  proprietor  may 
begin  to  exercise  his  rights  as  to  the  water  whenever  he 
pleases.  His  right  does  not  depend  upon  the  exercise  of  it.'^ 
Shaw,  C.  J.,  in  Johnson  v.  Jordan,  thus  states  in  a  summary 
form,  the  right  of  a  land  proprietor  to  a  natural  watercourse 
flowing  through  the  same :  "  Every  person  through  whose 
land  a  natural  watercourse  runs  has  a  right,  publici  juris,  to 
the  benefit  of  it,  as  it  passes  through  his  land,  to  all  the  use- 
ful purposes  to  which  it  may  be  applied ;  and  no  proprietor 
of  land  on  the  same  watercourse,  either  above  or  below,  has 
a  right,  unreasonably,  to  divert  it  from  flowing  into  his 
premises,  or  obstruct  it  in  passing  from  them,  or  to  corrupt 
or  destroy  it.  It  is  inseparably  annexed  to  the  soil,  and 
passes  with  it,  not  as  an  easement,  nor  as  an  appurtenance, 
but  as  parcel.  Use  does  not  create  it,  and  disuse 
cannot  destroy  or  suspend  it.  *  Unity  of  possession  [*216] 
and  title  in  such  land  with  the  lands  above  it  or  be- 
low it  does  not  extinguish  it  or  suspend  it."^ 

11.  In  determining,  therefore,  what  these  rights  of  the  re- 
spective riparian  proprietors  upon  a  stream  are,  two  things 
are  to  be  taken  into  consideration  ;  —  first,  that,  to  derive  a 
value  from  this  incident  to  his  property,  requires  that  the 

Johns.  Ch.  162;  Campbell  v.  Smith,  3  Ilalst.  140;  Tugh  v.  Wheeler,  2  Dcv.  & 
B.  50;  Elliot  v.  Fitchhurg  R.  R.  Co.,  10  Cush.  191  ;  Wright  v.  Howard,  1  Sim. 
&  S.  190,  203;  Sampson  v.  Hoddinott,  1  C.  B.  n.  s.  590;  Parker  v.  Foote,  19 
Wend.  309;  Johnson  v.  Jordan,  2  Mete.  234;  Canham  v.  Fisk,  2  Crompt.  &  J. 
126;  Rowbotham  v.  Wilson,  8  Ellis  &  B.  123,  per  BramweU,  B. ;  Williams  v. 
Morland,  2  Barnew.  &  C.  910  ;  Mason  v.  Hill,  2  Barnew.  &  Ad.  1 ;  Shreve  v. 
Vooriiees,  2  Green,  Ch.  25  ;  Tourtellot  v.  Phelps,  4  Gray,  370 ;  Gary  v.  Daniels, 
8  Mete.  466;  Davis  v.  Fuller,  12  Vt.  178;  Hendricks  v.  Johnson,  6  Port.  472; 
Wadsworth  v.  Tiilotson,  15  Conn.  366;  Plumleigh  v.  Dawson,  1  Giim.  544; 
M'Coy  V.  Danlcy,  20  Penn.  St.  85 ;  Blanchard  v.  Baker,  8  Me.  253 ;  Webb  v. 
Portland  Mg.  Co.,  3  Sumn.  189  ;  Stockoe  v.  Singers,  8  Ellis  &  B.  31. 

1  Corning  v.  Troy,  &c.  Factory,  39  Barb.  311. 

2  Crossley  v.  Lightowler,  L.  R.  3  Eq.  296. 

3  Johnson  v.  Jordan,  2  Mete.  234,  239  ;  Holsman  v.  Boiling  Spring  Co.  1 
M'Carter,  335. 


278  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cii.  III. 

proprietor  should  apply  the  water  to  use  in  some  form  ;  and, 
second,  that  whatever  is  true  of  his  own  right  is  true  of 
every  other  proprietor  above  and  below  him.  And  from  these 
a  rule  has  been  deduced,  which  is  as  near  uniform  as  the 
nature  of  the  case  admits,  and  that  is,  that  each  proprietor 
may  make  any  reasonable  use  of  the  water  upon  his  prem- 
ises, provided  he  do  not  thereby  essentially  or  materially 
diminish  the  quantity  or  corrupt  the  quality  of  water  in  the 
stream,  so  as  to  deprive  other  proprietors  of  a  fair  and  rea- 
sonable participation  in  the  benefits  thereof.  The  uses  to 
which  water  may  be  applied  are  so  various,  and  the  circum- 
stances of  the  several  cases  where  this  is  to  be  done  are  so 
diverse,  that  no  more  definite  rule  than  this  can  be  laid 
down.  And  whether,  in  any  given  case,  a  use  shall  have 
been  reasonable  or  otherwise,  must,  as  will  be  seen  hereafter, 
ordinarily  be  referred,  as  a  question  of  fact,  to  a  jury.^ 

The  case  of  Holsman  v.  Boiling  Spring  Co.,  may  be  cited 
as  illustrating  the  general  propositions  above  stated.  The 
plaintiff  had  a  valuable  estate  and  pleasure  grounds  upon  a 
small  stream,  upon  which  the  defendant  had  a  bleachery 
above  the  plaintiff's  works.  The  chemicals  used  in  the 
bleachery  and  thrown  into  the  stream,  corrupted  the  water, 
and  rendered  it  unfit  for  the  uses  to  which  it  had  been  ap- 
plied by  the  plaintiff.  In  settling  the  respective  rights  of  the 
parties  upon  the  plaintiff's  application  for  an  injunction  to 
the  fouling  of  the  water  by  the  defendant,  the  court  held 
that  every  riparian  proprietor  had  a  right  to  the  natural  flow 
of  the  water  of  a  stream,  as  well  in  quality  as  quantity. 
The  right  of  a  riparian  proprietor  to  the  use  and  enjoyment 
of  a  stream  of  water  in  its  natural- state,  is  as  sacred  as  the 
right  of  soil  itself.  If  a  mill  has  acquired  a  prescriptive 
right  to  foul  the  water  in  one  mode  or  to  a  certain  extent,  it 
will  not  justify  fouling  it  in  another  mode  or  to  a  greater  ex- 
tent.   This  docs  not  depend  upon  what  a  riparian  proprietor 

1  Davis  V,  Getclicll,  50  Maine,  604. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  279 

may  have  expended  upon  his  estate,  but  applies  to  riparian 
estates  universally.^ 

The  following  extended  quotation  from  the  opinion  of 
Story,  J.,  in  the  case  of  Tyler  v.  Wilkinson,  presents  views 
of  the  law  upon  this  subject  which  have  met  the  approba- 
tion of  American  courts,  and  been  liberally  cited  and  com- 
mended by  the  English  courts,  especially  by  the  very  able 
judges  of  the  present  Court  of  Exchequer.  "  Prima  facie, 
every  proprietor  upon  each  bank  of  a  river  is  entitled  to  the 
land  covered  with  water  in  front  of  his  bank,  to  the  middle 
thread  of  the  stream.  In  virtue  of  this  ownership,  he  has  a 
right  to  the  use  of  the  water  flowing  over  it,  in  its  natural 
current,  without  diminution  or  obstruction.  But, 
strictly  *  speaking,  he  has  no  property  in  the  water  [*217] 
itself,  but  the  simple  use  of  it  while  it  passes  along. 
The  consequence  of  this  principle  is,  that  no  proprietor  has 
a  right  to  use  the  water  to  the  prejudice  of  another.  It  is 
wholly  immaterial  whether  tlie  party  be  a  proprietor  above 
or  below  in  the  course  of  the  river,  the  right  being  common 
to  all  the  proprietors  on  the  river,  no  one  has  a  right  to 
diminish  the  quantity  which  will,  according  to  the  natural 
current,  flow  to  a  proprietor  below,  or  to  throw  it  back  upon  a 
proprietor  above.  This  is  the  necessary  result  from  the  per- 
fect equality  of  right  among  all  the  proprietors  of  that  which 
is  common  to  all.  The  natural  stream,  existing  by  the 
bounty  of  Providence  for  the  benefit  of  the  land  through 
which  it  flows,  is  an  incident  annexed,  by  operation  of  law, 
to  the  land  itself.  "When  I  speak  of  this  common  right,  I  do 
not  mean  to  be  understood  as  holding  the  doctrine  that  there 
can  be  no  diminution  whatsoever,  and  no  obstruction  or  im- 
pediment whatever,  by  the  riparian  proprietor,  in  the  use  of 
the  water  as  it  flows,  for  that  would  be  to  deny  any  valuable 
use  of  it.  There  may  be,  and  there  must  be  allowed,  of  that 
which  is  common  to  all,  a  reasonable  use.     The  true  test  of 

1  Ilolsman  v.  Boiling  Spring  Co.,  1  M'Carter,  335 ;  Crosslcy  r.  Lightowler, 
L.  E.  3  Eq.  297. 


280  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cif.  III. 

the  principle  and  extent  of  use  is,  whether  it  is  to  the  injury 
of  the  other  proprietors  or  not The  maxim  is  ap- 
plied,  Sic  utere  tuo  ut  alienum  non  ladasy^ 

And  Shaw,  C.  J.,  in  Bardwell  v.  Ames,  in  speaking  of  the 
rights  of  a  riparian  owner  upon  one  side  of  a  river, 
[*218]  like  the  *Connecticut,  says :  "  Such  owner,  like 
every  other  owner  of  land  over  which  there  is  a 
stream  of  water,  has  a  right  to  appropriate  to  himself,  and 
apply  to  any  useful  and  beneficial  purpose,  the  force  to  be 
derived  from  the  natural  flow  of  the  water  as  it  passes  over 
his  land,  subject  only  to  this  limitation,  that  he  does  not 
thereby  injuriously  affect  the  common  and  equal  rights  of 
other  proprietors  of  lands  above  or  below  his  own  on  tlie 
stream."  ^ 

This  is  -further  illustrated  by  Parke,  B.,  in  the  case  of 
Embrey  v.  Owen,  above  cited,  where  he  says :  "  The  right  to 
have  the  stream  flow  in  its  natural  state,  without  diminu- 
tion or  alteration,  is  an  incident  to  the  property  in  the  land 
through  which  it  passes;  but  flowing  water  is  publici  juris, 
not  in  the  sense  of  bonum  vacans,  to  which  the  first  occu- 
pant may  acquire  an  exclusive  right,  but  that  it  is  public 
and  common  in  this  sense  only,  that  all  may  reasonably  use 
it  who  have  a  right  of  access  to  it ;  that  none  can  have  any 
property  in  the  water  itself,  except  in  the  particular  portion 
which  he  may  choose  to  abstract  from  the  stream  and  take 
into  his  possession,  and  that  during  the  time  of  his  posses- 
sion only.     But  each  proprietor  of  the  adjacent  land  has  the 

1  Tyler  v.  Wilkinson,  4  Mason,  397 ;  3  Kent,  Comm.  439 ;  Gardner  v.  Trus- 
tees of  Village  of  Newburgh,  2  Johns.  Ch.  162;  Soc.  for  establishing  Manufac- 
tures V.  Morris  Canal  &  Banking  Co.,  Saxt.  Ch.  157,  188;  Merritt  v.  Parker, 
Coxe,  460  ;  Shreve  v.  Voorhees,  2  Green,  Ch.  25 ;  Cary  v.  Daniels,  8  Mete.  466  ; 
Haas  V.  Choussard,  17  Texas,  588;  Hendrick  v.  Cook,  4  Ga.  241,  255;  Diiling 
V.  Murray,  6  Ind.  324  ;  Embrey  v.  Owen,  6  Exch.  333  ;  Dickinson  v.  Grand  Junc- 
tion Canal  Co.,  7  Exch.  300 ;  W^ood  v.  Waud,  3  Exch.  748,  775 ;  Evans  v.  Mer- 
riweather,  3  Scamm.  492  ;  Tourtellot  v.  Phelps,  4  Gray,  370 ;  Gould  v.  Boston 
Duck  Co.,  13  Gray,  442;  Twiss  i'.  Baldwin,  9  Conn.  291  ;  Piatt  v.  Johnson,  15 
Johns.  213;  Ilowell  t>.  M-Coy,  3  Rawlc,  256;  Blanchard  y.  Baker,  8  Me.  253 ; 
Davis  V.  Getchell,  50  Maine,  604 ;  H.ayes  v.  Waldron,  44  N.  II.  584. 

2  Bardwell  v.  Ames,  22  Pick.  354;  Davis  v.  Getchell,  50  Maine,  604. 


Sect.  1.]       PROPERTY  IN   STREAMS   AND   WATERCOURSES.  281 

right  to  the  usufruct  of  the  stream  which  flows  through 
it."i 

Shaw,  C.  J.  has  also  defined  the  rights  of  tlic  several 
riparian  proprietors  upon  a  stream,  in  respect  to  the  use  of 
the  water  tliereof,  in  Cummings  v.  Barrett,  in  these  words : 
"  The  upper  proprietor  has  a  right  to  make  any  use  of  the 
stream,  which  is  beneficial  to  his  estate  and  himself,  which 
is  reasonable,  and  does  not  either  wholly  take  away  the  right 
of  the  lower  proprietor,  or  does  not  practically,  and  in  a  per- 
ceptible and  substantial  degree,  diminish  and  impair  an  equal 
and  common  riglit  of  the  lower  proprietor."     And 
whether  it  has  this  effect,  he  says,  is  often  a  *ques-   [*219] 
tion  of  fact  depending  upon  the  peculiar  circumstan- 
ces of  the  case.2 

The  owner  of  land  may  apply  the  water  that  flows  in  a 
stream  over  it  to  domestic,  agricultural,  or  manufacturing 
purposes,  provided  he  uses  it  in  a  reasonable  manner,  and  so 
as  to  work  no  material,  actual  injury  to  others,  or  to  the 
infringement  of  the  rights  of  others.  And  this  extends  to 
the  depositing  in  such  stream  waste  matter  and  foreign  sub- 
stances which  are  the  results  of  jDrocesses  of  manufactures, 
provided  it  be  a  reasonable  use  of  the  same,  which  is  a 
question  of  fact  to  be  determined  by  a  jury.  And  what  is 
reasonable,  must  depend  upon  a  variety  of  conditions,  such 
as  the  size  and  character  of  the  stream  and  the  uses  to  which 
it  can  be  applied.^ 

12.  It  follows,  as  a  corollary  from  the  doctrine  of  the  above 
cases,  that,  in  the  language  of  Parke,  B.,  in  Embrey  v.  Owen, 
cited  above,  "  it  is  only  for  an  unreasonable  and  unauthorized 

1  Mason  v.  Hill,  5  Barnew.  &  Ad.  1 ;  Piigh  v.  Wheeler,  2  Dcv.  &  B.  50; 
Howell  V.  M'Coy,  3  Rawle,  256;  Thomas  v.  Brackney,  17  Barb.  654;  Wright  v. 
Howard,  1  Sim.  &  S.  190,  203. 

2  Cummings  v.  Barrett,  10  Cush.  186 ;  Elliot  v.  Fitchhurg  R.  R.  Co.,  10  Cusb. 
191  ;  Thomas  v.  Brackney,  17  Barb.  654;  Parker  v.  Hotdikiss,  25  Conn.  321  ; 
Gould  V.  Boston  Duck  Co.,  13  Gray,  442  ;  Hendrick  v.  Cook,  4  Ga.  241  ;  Selden 
V.  Del.  &  Hud.  Canal,  29  N.  Y.  642. 

8  Hayes  v.  Waldron,  44  N.  H.  584 ;  Housee  v.  Hammond,  39  Barb.  95  ;  do  post, 
*282.' 


282       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

use  of  this  common  benefit  that  an  action  will  lie,"  though, 
it  may  be  added,  for  such  a  iisc  an  action  will  \[%  though  no 
actual  damage  may  thereby  have  accrued  to  the  proprietor 
whose  riglit  has  been  invaded. ^ 

13.  Though  the  courts,  both  of  England  and  this  country, 
seem  to  be  so  well  agreed  in  the  general  principles  applicable 
to  the  rights  of  water,  the  uses  to  which  it  may  be  put  are 
so  various,  that  it  is  often  difficult  to  apply  any  general  rule 
to  the  practical  operations  of  the  several  riparian  proprietors. 
One  may  wish  to  use  the  stream  for  mill  purposes,  another 
for  the  irrigation  of  his  land,  and  a  third  for  household 
purposes,  or  supplying  the  necessary  drink  for  his  cattle. 
The  use  to  which  one  may  wish  to  apply  it  will  leave  the 
waters  of  the  stream  pure  and  healthy,  while  the  business  of 
another,  if  suffered  to  be  carried  on,  renders  it  foul  or  dele- 
terious to  health.  It  is  this  diversity  of  uses  and  interests 
which,  in  its  practical  workings,  has  led  to  many  of  the  mul- 
tiplied questions  which,  especially  of  late,  have  engaged  the 
attention  of  the  courts.  Ever  since  the  32  Edw.  III.,  the 
uniform  rule  of  law  has  been,  that  an  action  will  lie  for  an 
actual  diversion  of  the  water  of  a  stream.^  Yet  the  cases 
are  numerous  where  a  diversion  of  water,  under  certain  cir- 
cumstances, has  been  held  lawful,  one  of  which  is  given 

here,  for  purposes  of  illustration. 
[*220]       *In  the  case  of  Wadsworth  v.  Tillotson,  which  was 

an  action  for  an  alleged  diversion  of  water  which 
ought  to  flow  to  the  plaintiff's  land,  there  was  a  spring  in 
the  defendant's  land  wdiicli  naturally  overflowed  and  dis- 
charged its  waters  by  a  defined  channel,  running  through  the 
plaintif^''s  land  adjoining  that  of  the  defendant.  Tlie  defend- 
ant laid  an  aqueduct  from  this  spring  to  his  house  for  supply- 

1  Emhrcy  v.  Owen,  6  Exch.  353,  369 ;  Johns  v.  Stevens,  3  Vt.  308  ;  Thomas 
V.  Brackney,  17  Barb.  654;  Ripka  v.  Sergeant,  7  Watts  &  S.  9.  Compare  the 
above  witli  the  unguarded  hinguage  of  tlie  court  in  Bellinger  v.  N.  Y.  Central  R. 
R.,  23  N.  Y.  47. 

2  Year  B.,  Book  of  Assize,  32  Edw.  III.  pi.  2;  2  Rolle,  Abr.  140;  Con^  Dig. 
Action  upon  llic  Case  for  a  Nuisance,  A. 


Sect.  1.]       PROrERTY   IN   STREAMS   AKD   WATERCOURSES.  283 

ing  it  with  water,  and  for  watering  his  cattle  ;  and  in  order  to 
keep  it  pure  and  prevent  its  freezing,  he  suffered  portions  of  it, 
more  than  lie  wanted  for  the  above  uses,  to  escape,  and  cither 
applied  it  in  irrigating  his  lands,  or  suffered  it  to  run  to  waste, 
so  that  the  plaintiff  lost  the  benefit  of  a  part  of  the  natural 
flow  of  the  stream  through  his  land.  It  was  held  that  the  de- 
fendant had  a  right  to  divert  what  was  reasonably  necessary 
for  supplying  his  family  use,  and  that  he  might  use  the  water 
in  a  reasonable  manner,  and  so  as  not  to  destroy  or  render 
useless,  or  materially  diminish  or  affect  the  application  of  the 
same  by  the  proprietors  upon  the  stream  below.  And  it  was 
further  held,  that  the  rule  that  water  ought  to  flow  as  it  is 
wont,  without  diminution  or  alteration,  and  cannot  be  di- 
verted in  whole  or  in  part,  out  must  be  returned,  after  it  is 
used,  to  its  ordinary  channel,  is  not  to  be  understood  liter- 
ally, so  as  to  prevent  a  small,  unessential,  or  insensible  dimi- 
nution, variation,  or  loss  of  the  water  incident  to  the  bene- 
ficial use  of  it.  And  the  question  was  submitted  to  the  jury, 
whether  the  mode  in  which  the  diversion  was  made  in  this 
case  was  or  was  not  a  reasonable  one,  with  a  direction  that, 
if  it  was,  the  defendant  was  not  liable  therefor,  though  the 
plaintiff  thereby  suffered  some  loss.^ 

But  it  should  be  remembered,  that  a  riparian  proprietor 
may,  by  long  exercise  of  the  right,  acquire  a  right  to  stop 
the  flow  of  water  from  his  premises  to  those  below  him,  and 
wholly  deprive  the  owner  thereof  of  the  same.^ 

*But  nothing  short  of  twenty  years'  continued  di-   [*221] 
version  authorizes  a  presumption  of  grant  or  license 
to  create  it.'^ 

14.  Though  the  interest  in  the  water  of  a  stream  has  thus 
far  been  treated  of  as  a  subject  of  separate  and  individual 
property,  there  is  often  a  joint  interest  in  it  which  involves 

1  "Wiidsworth  v.  Tillotson,  15  Conn.  369.     See  Perkins  ?:.  Dow,  1   Root,  535; 
Chatfield  v.  Wilson,  31  Vt.  358;  Gillett  v.  Jolinson,  30  Conn.  183. 

2  Ennor  v.  Banvell,  2  Giff.  410,  420. 

3  Haight  V.  Price,  21  N.  Y.  241. 


284  THE  LAW   OF  EASEMENTS  AND   SERVITUDES.         [Cii.  III. 

rules  as  to  the  respective  rights  of  two  or  more  joint  owners, 
of  a  somewhat  peculiar  character.  Thus,  if  one  proprietor 
owns  land  upon  one  side  of  a  stream,  in  which  the  tide  does 
not  ebb  and  (low,  and  another  owns  upon  tlie  opposite  side, 
the  dividing  line  of  their  lands  is  the  thread  or  centre  line  of 
the  stream  between  the  banks,  irrespective  of  the  circum- 
stance that  a  larger  or  smaller  quantity  or  current  of  water 
flows  upon  one  side  or  the  other  of  that  line.^ 

But  each  proprietor  does  not  thereby  become  the  owner  of 
any  distinct  portion  of  the  waters  flowing  in  the  stream,  re- 
garding them,  in  their  capacity  for  use,  as  heretofore  ex- 
plained. Viewed  in  that  light,  the  property  in  tlie  stream  is 
one  and  indivisible,  and  each  riparian  proprietor  is  bound  to 
use  it  accordingly  as  an  entire  stream  in  its  natural  channel ; 
or,  in  other  words,  he  cannot  sever  the  stream,  for  a  sever- 
ance of  it  would  destroy  the  rights  of  both.  One  proprietor 
cannot,  however,  so  appropriate  or  use  the  stream  as  materi- 
ally to  injure  others  jointly  interested  in  it.  Each  having  a 
right  to  only  one  half  of  the  water,  he  may  use  the  same,  but 
must  use  it  as  it  is  accustomed  to  flow  down  the  channel.^ 

If  the  owner  of  one  side  of  a  stream  to  the  thread  thereof, 
divert  the  water  from  the  stream,  the  owner  of  the  other  part 
of  it  may  restrain  him  from  so  doing,  as  he  has  a  right  to  the 
natural  flow  of  the  stream  over  his  part  of  the  bed  of  it.^ 

Accordingly,  where  a  riparian  owner  on  one  side  of  a 
stream  erected  a  dam  wholly  within  his  own  land,  and  by 
means  thereof  created  and  used  a  water-power  on  his  own 
land  for  more  than  twenty  years,  it  was  held  that  he 
[*222]  was  *only  exercising  his  own  right,  and  not  adverse- 
ly to  the  rights  of  the  owner  of  the  other  side  ;  and 
that  it  did  not  derogate  from  his  right  to  enjoy  the  use  of  his 

1  Pratt  V.  Lixmson,  2  Allen,  275,  284;  Trustees,  &c.  v.  Dickiuson,  9  Cusli.  544, 
552;  Scliurmeicr  v.  St.  P.  &  Par.  R.  R.,  10  Min.  102. 

2  Canal  Trustees  v.  Haven,  11  111.  554;  Vandenburgh  v.  Van  Ber<,'en,  13 
Johns.  212;  Pluniluigli  v.  Dawson,  1  Gilm.  544,  551  ;  Ersk.  Inst.,  fol.  ed.  358; 
Pratt  V.  Lanison,  2  Allen,  275,  287. 

=*  Corning  v.  Troy  Iron,  &c.  Co.,  22  How.  Prac.  Cas.  219  ;  s.  c,  39  Barb.  311. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND    WATERCOURSES.  285 

undivided  share  of  the  stream  whenever  he  should  see  fit  to 
apply  the  same,  unless  the  first  occupant  shall  have  done 
that  which  positively  excluded  the  other  owner  from  enjoy- 
ing the  sarae.^ 

15.  Attempts  have,  at  times,  been  made  to  lay  down  some- 
thing like  arbitrary  rules  by  which  to  determine,  in  cases 
where,  from  drought  or  other  cause,  there  fails  to  be  water 
enough  in  a  stream  to  supply  the  wants  of  several  successive 
owners  upon  its  banks,  to  which  of  them  a  prior  right  to  the 
water  is  to  be  accorded.  Thus,  for  instance,  suppose  the 
case  of  a  stream  the  water  of  which  is  applied  by  one  to  do- 
mestic uses,  by  another  to  irrigate  his  land,  and  by  a  third 
to  operate  a  mill  ;  may  either  claim  a  precedence  in  right  to 
the  same,  or  is  the  water  to  be  equally  shared  by  them  all, 
or  is  it  to  depend  upon  the  order  in  which  their  estates  stand 
upon  the  stream  ? 

The  question  arose  in  Evans  v.  Merriweather,  where  the 
court  of  Illinois  undertook  to  prescribe  rules  applicable  to 
cases  like  the  one  supposed.  The  stream,  in  that  case,  was 
a  small  and  natural  one.  The  plaintiff  and  defendant  both 
had  mills  upon  its  banks,  which  were  operated  by  steam,  for 
generating  which  the  waters  of  the  stream,  in  connection  with 
those  of  certain  large  wells,  were  used,  and,  ordinarily,  were 
sufficient.  But  a  drought  having  prevented  such  supply,  the 
defendant,  who  owned  the  upper  mill  upon  the  stream,  jDlaced 
a  dam  in  it,  by  which  the  water  flowing  therein  was  turned 
into  his  well,  and  the  plaintiff's  mill  was  wholly  deprived  of 
the  same.  As  both  were  mill-owners,  the  determination  of 
the  question  raised  between  them  would  not  seem  to  call  for 
a  solution  of  the  question  above  proposed.  But  the  court 
proceed  to  discuss  it,  under  the  inquiry  whether  the 
entire  consumption  of  a  stream  by  *an  upper  proprie-  [*223] 
tor  can,  in  any  case,  be  a  reasonable  one  ? 

"  To  answer  this  question  satisfactorily,"  say  the  court, 

1  Pratt  V.  Lamson,  2  Allen,  275,  289 ;  Corning  v.  Troy,  &c.  Co.,  39  Barb.  311. 


286  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cu.  III. 

"  it  is  proper  to  consider  the  wants  of  man  in  regard  to  the 
element  of  water.  These  wants  are  either  natural  or  artifi- 
cial. Natural  are  such  as  are  absolutely  necessary  to  be 
supplied,  in  order  to  his  existence;  artificial,  such  only  as, 
by  supplying  them,  his  comfort  and  prosperity  are  increased. 
To  quench  thirst,  and  for  household  purposes,  it  is  absolutely 
indispensable.  In  civilized  life,  water  for  cattle  is  also  neces- 
sary. These  wants  must  be  supplied,  or  both  man  and  beast 
will  perish."  The  court  then  go  on  to  state,  that,  for  manu- 
facturing purposes,  or  those  of  irrigation,  the  use  of  water  is 
not  essential  to  man's  existence  in  this  climate,  Avhatever  it 
might  be  in  hot  and  arid  climates,  and  add :  "  From  these 
premises  would  result  this  conclusion,  that  an  individual, 
owning  a  spring  upon  his  own  land,  from  which  water  flows 
in  a  current  through  his  neighbor's  land,  would  have  a  right 
to  use  the  whole  of  it,  if  necessary,  to  satisfy  his  natural 
wants.  He  may  consume  all  the  water  for  his  domestic  pur- 
poses, including  water  for  his  stock.  If  he  desires  to  use  it 
for  irrigation  or  manufactures,  and  there  be  a  lower  propri- 
etor to  whom  its  use  is  essential  to  supply  his  natural  wants, 
or  for  his  stock,  he  must  use  the  water  so  as  to  leave  enough 
for  such  lower  proprietor.  Where  the  stream  is  small,  and 
does  not  supply  water  more  than  sufficient  to  answer  the 
natural  wants  of  the  different  proprietors  living  on  it,  none 
of  the  proprietors  can  use  the  water  for  either  irrigation  or 

manufactures Each  proprietor,  in  his  turn,  may,  if 

necessary,  consume  all  the  water  for  these  purposes,"  that 
is,  for  the  supply  of  these  natural  wants.  The  case  goes  on 
to  affirm,  that  if,  beyond  the  supply  of  these,  any  surplus  is 
left,  all  have  a  right  to  participate  in  its  benefits,  and  no  rule 
can  be  laid  do^vn  as  to  how  much  each  may  use,  without  in- 
fringing the  rights  of  others.  The  question  in  such 
[*224]  cases  must  be  referred  to  a  jury,  to  say  whether  *a 
party  has,  under  all  the  circumstances,  used  more 
than  his  just  proportion  of  the  water.  And,  tried  by  the 
tests  which  had  tluis  been  premised,  the  court  had  no  dif- 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  287 

ficulty  in  holding  the  diversion  complained  of  to  be  unwar- 
ranted.^ 

The  opinion  thus  advanced  by  the  court  of  Illinois,  and 
which  seems  to  be  favored  more  or  less  directly  by  the  other 
cases  cited,  may  be  considered  as  deriving  weight  freni  what 
will  appear  in  the  following  pages  ;  namely,  that,  while  nu- 
merous questions  have  arisen  as  to  the  liability  of  land-own- 
ers for  the  manner  in  which  they  have  applied  the  water  of 
running  streams  for  irrigation  and  mill  purposes,  no  case  is 
recollected  where  one  has  been  held  to  have  violated  the 
rights  of  any  other  proprietor  by  any  use  made  by  him  upon 
his  own  premises  for  purely  domestic  purposes,  or  watering 
of  his  cattle.  And  further,  that  the  rule  is  a  universal  one, 
that  no  man  has  a  right  so  to  use  or  apply  water  flowing 
through  his  land  as  to  foul  the  same  or  render  it  corrupt  or  un- 
healthy, and  unfit  to  be  used  by  the  land-owner  on  the  stream 
below  him,  for  domestic  purposes,  or  watering  his  cattle. 

The  following  are  some  of  the  cases  illustrating  the  appli- 
cation of  the  foregoing  doctrines.  The  plaintiff  owned  a 
paper  mill,  which  derived  its  water,  among  other  sources, 
from  what  fell  upon  a  hillside,  and  found  its  way  into 
a  cavern  through  which  it  flowed  in  a  current,  and  foun(i 
its  way  into  the  stream  on  which  the  plaintiff's  mill 
was  situate,  and  so  to  the  plaintiff's  mill.  The  defend- 
ant began  works  upon  the  top  of  the  hill,  using  water 
which  was  thereby  fouled  and  corrupted,  and  was  suffered  to 
find  its  way  through  fissures  into  the  cavern  where  it  mingled 
with  the  water  flowing  through  it,  and  thereby  fouled  the 
water  that  came  to  the  plaintiff's  mill,  and  rendered  it  unfit 
for  his  use.     It  was  held  that  he  was  liable  in  an  action  for 

1  Evans  v.  Merriweather,  3  Scamm.  492.  See  Ingraham  v.  Hutchinson,  2 
Conn.  584;  Arnold  v.  Foot,  12  Wend.  340;  Pugh  v.  Wheeler,  2  Dcv.  &  B.  50, 
54  ;  Omclvanv  v.  Jaggcrs,  2  Hill,  So.  C.  634  ;  Blanchard  v.  Baker,  8  Me.  253; 
Elliot  V.  Fitehburg  R.  R.  Co.,  10  Cush.  191 ;  Stein  v.  Burden,  29  Ala.  127 ;  s.  c, 
24  Ala.  130;  Smith  v.  Adams,  6  Paige,  435;  Brown  v.  Best,  1  Wils.  174;  Johns 
V.  Stevens,  3  Vt.  308,  316;  Chatfield  v.  Wilson,  31  Vt.  358;  Pardessus,  Traite 
des  Servitudes,  §  114 ;  1  Fournel,  Traite  du  Voi.sinng.',  347. 


288      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

thus  fouling  the  water,  although  it  passed  a  considerable 
part  of  its  way  through  the  earth  and  underground.^ 

16.  It  may  be  stated,  though  it  might  seem  to  result 
necessarily  from  what  has  already  been  said,  that  the  owner 
of  land  through  which  a  stream  of  water  flows  has,  as  inci- 
dent to  such  ownership,  a  right  to  have  the  water  flow  from 
his  land,  without  obstruction,  upon  that  of  the  next  adjoin- 
ing proprietor  below,  and  for  creating  any  such  obstruction 
he  may  have  his  action,  as  for  the  diversion  which  prevented 
its  flowing  to  and  upon  his  land.^ 

The  owner  of  a  swamp  or  wet  land  may  drain  the  same 
into  a  stream  in  his  own  land,  without  being  liable  therefor, 
though  it  increase  the  quantity  of  water  in  the  stream  to  the 
injury  of  the  owner  below.  But  he  may  not  thus  throw  the 
water  upon  land  below  him  by  an  artificial  trench.^ 

If  the  public,  in  making  or  repairing  a  highway,  stop  the 
water  that  naturally  flows  into  it,  so  as  to  throw  it  back  on 
to  the  adjoining  owner's  land,  the  surveyor  who  does  it, 
would  be  held  liable  in  damages.*  And  such  would  be  the 
law  as  to  railroads.  But  if  it  is  necessary,  in  making  a  rail- 
road, to  stop  the  flow  of  water,  and  thereby  to  flood  the  ad- 
jacent land,  it  would  be  considered  that  a  right  to  do  this 
was  incident  to  and  embraced  in  the  easement  acquired  by 
the  location.^ 

In  a  case  before  the  Lords  of  the  Privy  Council,  the  court 
use  this  language:  "  Every  riparian,  proprietor  has  a  right 
to  what  may  be  called  the  ordinarij  use  of  water  flowing  past 
his  land,  for  instance,  to  the  reasonable  use  of  the  water  for 
his  domestic  purposes  and  for  his  cattle,  and  this  without  re- 

1  Hodgkinson  v.  Ennor,  4  B.  &  Smith,  229 ;  post,  p.  *364. 

'^  Johns  V.  Stevens,  3  Vt.  308,  316;  Tugh  v.  Wheeler,  2  Dev.  &  B.  50,  53; 
Overton  v.  Sawyer,  1  Jones,  No.  C.  308;  Tillotson  v.  Smith,  32  N.  H.  90;  Mar- 
tin V.  Jett,  12  La.  501  ;  Martin  v.  Kiddle,  27  Penn.  St.  415,  note;  Kauffman  v. 
Griescmcr,  26  Penn.  St.  407,  413. 

2  Miller  v.  Laubach,  47  Penn.  154. 

*  Howe  V.  Addison,  34  N.  II.  313 ;  Hayncs  v.  Burlington,  38  Verm.  361. 
6  Joimson  I'.  Atlantic,  &c.  R.  R.,  35  N.  H.  572 ;  Proprietors,  &c.  v.  Nashua, 
&c.  K.  R.,  10  Cubh.  388. 


Sect.  1.]   PROPERTY  IN  STREAMS  AND  WATERCOURSES.      289 

gard  to  the  effect  which  such  use  may  have,  in  case  of  defi- 
ciency, upon  proprietors  lower  down  the  stream.  He  has  a 
right  to  use  it  for  any  purpose,  or  what  may  be  deemed  the 
extraordinary  use  of  it,  provided  that  he  does  not,  thereby, 
interfere  with  the  rights  of  other  proprietors,  either  above  or 
below  him.  Subject  to  this  condition,  he  may  dam  up  the 
stream  for  the  purpose  of  a  mill,  or  divert  the  water  for  the 
purpose  of  irrigation.  But  he  has  no  right  to  interrupt  the 
regular  flow  of  the  stream,  if  he  thereby  interferes  with  the 
lawful  use  of  the  water  by  other  proprietors,  and  inflicts  on 
them  a  sensible  injury."  ^ 

The  Court  of  Alabama  cover  the  point  that  has  some- 
times been  made  whether,  if  there  is  not  water  enough  in 
the  stream  to  supply  the  wants  of  both  upper  and  lower 
owner,  the  upper  one  can  use  it  all,  or  is  bound  to  share  it 
with  the  lower  owner.  "  Each  riparian  proprietor  has  the 
right  to  use  the  water  which  flows  from  or  through  his  lands 
for  all  ordinary  purposes  and  for  the  gratification  of  natural 
wants,  even  though  in  such  use  he  consumes  the  entire 
stream  ;  this  right  extends  to  the  iise  of  the  water  ad  lavan- 
dum  et  potandum,  both  by  himself  and  all  living  things  in 
his  legitimate  employment."  "  Such  proprietor  has  also  the 
right  to  the  extraordinary  or  artificial  use  of  the  stream  of 
water  composing  it,  provided  that,  by  such  use,  the  water  is 
not  forced  back  upon  the  lauds  of  the  proprietor  above,  is  not 
unreasonably  and  injuriously  precipitated  on  the  lands  of  the 
proprietor  below,  and  after  its  use  is  restored  without  material 
diminution,  and  before  it  leaves  the  land  of  the  person  divert- 
ing it  to  its  accustomed  channel."^ 

So,  if  the  effect  of  erecting  a  bridge  for  a  highway  across  a 
stream,  in  a  reasonable  and  proper  manner,  be  to  damage  a 
mill  upon  the  same  stream,  the  remedy  of  the  mill-owner  is 
not  by  an  action  against  the  town  for  damages,  but  by  resort 
to  the  same  mode  for  relief  which  is  provided  for  the  recov- 

1  Miner  i'.  Gilinore,  12  Moore,  P.  C.  156 ;  1  Lepage  Desgodets,  16. 
-  Stein  V.  Burden,  29  Ala.  132. 
19 


290  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

ery  of  damages  in  cases  where  private  property  is  taken  for 
public  uses,  and  the  same  rule  applies  to  a  railroad  if,  in 
erecting  such  bridge,  it  acts  within  the  scope  of  the  powers 
given  it  by  its  charter.^ 

But  if  a  town,  by  failing  to  provide  a  proper  culvert,  or 
keep  it  in  repair  to  carry  off  the  water  of  a  watercourse, 
thereby  flows  back  water  on  to  land  above,  it  would  be  lia- 
ble in  an  action  for  damages.^ 
[*225]  *And  this  principle,  it  may  be  remarked,  though 
more  fully  illustrated  hereafter,  applies  to  surface 
water  as  well  as  to  that  flowing  in  a  proper  watercourse.'^ 

17.  But  if,  from  natural  causes,  the  channel  by  which  the 
water  flows  from  one's  land  becomes  clogged  or  obstructed, 
it  is  incumbent  upon  him  to  cause  the  same  to  be  cleared, 
if  he  would  avail  himself  of  it  to  relieve  his  land.*  He  has, 
however,  no  right  to  deepen  the  bed  by  removing  natural 
obstructions  in  the  land  of  another,  nor  obstructions  long 
existing  therein,  though  originally  artificial.  And  if  the 
owner  of  the  land  remove  these,  he  will  not  be  liable  to  the 
owner  above,  though  he  replace  them  by  artificial  obstruc- 
tions, provided  the  latter  do  not  set  back  the  stream  any 
higher  than  the  natural  obstructions  had  previously  done.^ 

18.  It  may  be  added,  that  it  is  the  natural  right  of  a 
riparian  proprietor,  not  only  that  the  water  of  the  stream 
should  come  to  him  uncorrupted,  but  unchanged  in  its 
natural  temperature  by  the  proprietors  above,  through  or 
by  whose  lands  it  shall  have  flowed.^     And  this  applies,  also, 

1  Sprague  v.  Worcester,  13  Grcay,  193  ;  Perry  v.  Worcester,  6  Gray,  546  ;  Mel- 
len  V.  Western  R.  R.,  4  Gray,  302  ;  Hazen  v.  Essex  Co.,  12  Gush.  475 ;  Wheeler 
V.  Worcester,  10  Allen,  603. 

^  Haynes  v.  Burlington,  38  Verm.  362. 

3  Martin  v.  Kiddle,  26  Penn.  St.  407,  note ;  Laumier  v.  Francis,  23  Mo.  181 ; 
Bellows  V.  Sackett,  15  Barb.  96;  ante,  p.  *211. 

*  Brisbane  v.  O'Neall,  3  Strobh.  348;  Prescott  v.  Williams,  5  Mete.  429  ;  Pres- 
cott  y.  White,  21  Pick.  341. 

5  Brown  v.  Bush,  45  Penn.  64-  66. 

6  2  Kollc,  Abr.  141  ;  Gary  v.  Daniels,  8  Mete.  466,  476  ;  Alfred's  case,  9  Rep. 
59  ;  Mason  v.  Iliil,  5  Barnew.  &  Ad.  1  ;  Magor  v.  Chadwick,  11  Adolpii.  &  E. 
571  ;  Wood  (;.  Waud,  3  ICxch.  748,  777  ;  IIowclI  v.  M'Goy,  3  Kawle,  256  ;  Davis 
V.  Getchell,  50  Maine,  G04. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  291 

to  cases  where  the  riparian  proprietor  owns  only  upon  one 
side  of  the  stream.  Thus  where  the  OAvner  of  mills  upon  a 
stream,  who  was  accustomed  to  foul  the  water  by  dye-stuffs, 
&c.,  thrown  into  it,  sold  the  land  upon  one  side  of  the  stream 
below  his  mills  without  any  reserve,  it  was  held  that  the  pur- 
chaser, as  riparian  proprietor,  had  a  right  to  the  flow  of  the 
water  over  his  half  of  the  bed  of  the  stream,  pure  and  uncor- 
rupted,  and  that  the  vendor  had  no  longer  any  right  to  foul 
it.i 

19.  Though,  with  the  foregoing  idea  of  property  in  the 
use  of  water  in  connection  with  the  ownership  of  real  estate, 
it  may  seem  hardly  consistent  to  treat  that  as  an  easement 
which  is  naturally  incident  to  the  rightful  enjoyment  of 
one's  own  land,  yet  it  is  common  to  speak  of  the  right  of 
one  riparian  owner  upon  a  stream  to  have  the  water  thereof 
flow  from  the  land  of  an  owner  above  in  an  uncorrupted 
state  upon  and  along  his  own  land,  and  thence  to  discharge 
it  into  and  upon  the  land  of  the  owner  below  in  an  unob- 
structed manner,  as  a  natural  easement  and  servitude.  And 
the  land  of  such  owner  is  regarded  in  such  case,  in  respect  to 
the  flow  of  such  water,  both  a  dominant  and  servient  estate, 
in  respect  to  those  above  and  below  it  upon  the  same  stream. 
It  is,  at  least,  so  much  like  an  easement  or  servitude,  that  it 
may  not  be  considered  as  doing  any  violence  to  the 
terms,  although  a  natural  *incident  to  the  property  [*226] 
in  such  lands,  and  not  the  result  of  grant,  either  di- 
rect or  by  implication,  under  the  name  oi prescription? 

Thus  the  right  of  having  water  flow  unobstructed  from 
one's  land  is  considered  by  the  court  "  as  a  claim  of  right 
to  a  natural  easement,"  though  sometimes  it  is  called  "  a 
secondary  easement "  in  another's  land.^ 

1  Crossley  v.  Lightowler,  L.  R.  3  Eq.  297. 

-  See  Johnson  v.  Jordan,  2  Mete.  234;  Soule  v.  Russell,  13  Mete.  436  ;  ante, 
chap.  1,  sect.  1,  pi.  19,  20. 

3  Gary  v.  Daniels,  5  Mete.  236  ;  Prescott  v.  Williams,  5  Mete.  429  ;  Crittcnton 
V.  Alger,  11  Mete.  281  ;  Ashley  v.  Ashley,  6  Ciish.  70;  ante,  chap.  1,  sect.  2, 
pi.  11. 


292  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

The  law  is,  where  two  parcels  of  land  lie  adjoining  each 
other,  belonging  to  different  persons,  and  one  parcel  lies 
lower  than  the  other,  that  the  lower  one  owes  a  servitude  to 
the  upper,  to  receive  the  water  that  naturally  runs  from  it, 
provided  the  industry  of  man  has  not  been  used  to  create 
the  servitude} 

And  the  court,  in  Kauffman  v.  Griesemer,  use  the  following 
language,  in  speaking  of  this  as  a  natural  easement  or  servi- 
tude :  "  Because  water  is  descendible  by  nature,  the  owner 
of  a  dominant  or  superior  heritage  has  an  easement  in  the 
servient  or  inferior  tenement,  for  the  discharge  of  all  waters 
which  by  nature  rise  in  or  flow  or  fall  upon  the  superior. 
....  This  obligation  applies  only  to  waters  which  flow 
naturally  without  the  art  of  man.  Those  which  come  from 
springs,  or  from  rain  falling  directly  on  the  heritage,  or  even 
by  the  natural  dispositions  of  the  place,  are  the  only  ones  to 

which  this  expression  of  the  law  can  be  applied 

Hence  the  owner  of  a  mill  has  an  easement  in  the  land  be- 
low for  the  free  passage  of  the  water  from  the  mill 
[*227]  in  the  natural  channel  of  the  stream,"  <fec.  *  "  This 
easement,"  referring  to  that  which  the  superior  has 
in  the  inferior  as  the  servient  tenement,  "  is  called  a  servi- 
tude in  the  Roman  law."  ^ 

20.  From  the  familiar  fact  above  referred  to,  that  water  is 
descendible  by  nature,  there  are  few  uses  which  can  be  made 
of  it  by  any  one  upon  his  own  premises  that  do  not  more  or 
less  sensibly  affect  either  the  quantity  or  quality  of  the  water 
received  from  an  upper  tenement  and  discharged  upon  a 
lower  one,  or  the  uniformity  or  rate  of  impetus  with  which 
it  is  allowed  to  flow  through  one's  land  or  be  discharged 
upon  that  of  another.     It  results,  almost  as  a  matter  of 

1  Martin  v.  Jett,  12  La.  501  ;  Orleans  Navijration  Co.  v.  Mayor  of  New  Or- 
leans, 2  Martin,  214,  23."$ ;  Delahoussayc  v.  Judiee,  13  La.  Ann.  .587  ;  ante,  p.  15  ; 
1  Fonrncl,  Traitc  du  Voisinage,  337,  339 ;  Code  Nap.,  Art.  640 ;  5  Duranton, 
Cours  de  Droit  Franoais,  liv.  2,  tit.  4,  §  1,  pp.  152  -  166  ;  Pardessus,  Traitc  des 
Servitudes,  ^^  82,  83,  pp.  113-118,  ed.  1829  ;  Miller  v.  Laubach,  47  Penn.  154. 

2  Kauffman  v.  Griesemer,  26  Penn.  St.  407,  413.     See  ante,  p.  *211. 


Sect.  1.]       PROPERTY   IN   STREAMS   AND   WATERCOURSES.  293 

course,  that  easements,  in  the  proper  sense  of  the  term,  in 
numerous  forms,  may  be  acquired  in  reference  to  such  use, 
just  to  the  extent  to  which  sucli  use  may  vary  the  state  and 
condition  in  which  the  water  would  have  been,  if  it  had  been 
suffered  to  flow  in  a  strictly  natural  manner. 

It  becomes  necessary,  therefore,  in  pursuing  the  subject, 
to  point  out  how  far  the  various  modes  in  which  flowing 
water  is  ordinarily  applied  to  use  are  in  conformity  with  the 
natural  rights  which  are  incident  to  the  ownership  of  the 
land,  and  how  far  such  use,  though  not  in  conformity  with 
such  natural  right,  may  have  become  lawful  by  grant  or 
prescription  as  a  servitude  or  easement.  And  it  may  be 
stated,  as  a  general  proposition,  that,  from  the  earliest  history 
of  the  common  law,  it  has  been  deemed  an  actionable  tort 
for  one  man  to  obstruct  the  natural  flow  of  water  in  a  stream 
running  through  another's  land,  if  thereby  another  is  de- 
prived of  the  use  of  it,  or  his  land  is  submerged  by  such 
obstruction,  or  his  mill  is  hindered  in  its  operation.^ 

And  the  owner  of  the  land  through  which  it  flows,  has  no 
right  to  fill  up  a  watercourse,  or  divert  the  water  from  the 
land  below,  nor  to  flow  it  back  upon  the  land  above.^ 

21.  In  considering  the  law  as  to  the  uses  to  which  water 
may  be  applied,  it  becomes  necessary  to  treat  of  these  under 
difierent  heads.  And  for  that  purpose,  it  is  proposed,  first, 
to  consider  the  subject  of  irrigation,  next,  the  appli- 
cation of  *water  to  the  operation  of  mills,  as  gov-  [*228] 
erned  by  the  rules  of  the  common  law,  and  then  to 
inquire  into  the  character  and  extent  of  the  rights  which 
may  be  acquired  in  respect  to  water  flowing  in  artificial 
channels,  together  with  some  of  the  rights  of  water  for  the 
operation  of  mills,  created  by  statute. 

1  2  Rolle,  Abr.  140;  Com.  Dig.,  Action  on  the  Case  for  a  Nuisance,  A, 

2  Bangor  V.  Lansil,  31  Maine,  526. 


294  THE   LAW    OF   EASEMENTS    AND    SERVITUDES.         [Cii.  III. 

SECTION   II. 

OF   RIGHTS    OF   IRRIGATION. 

1.  How  far  water  may  be  diverted  for  the  purposes  of  irrigation. 

2.  Every  di\'ers\on  jjrima  facie  against  right,  when  lawful. 

3.  Natural  right  of  diversion  and  that  acquired  as  an  easement. 

4.  What  a  legal  use  of  water,  though  injuriously  affecting  others. 

5.  American  cases  on  the  rights  of  irrigation. 

6.  English  cases  on  the  same  subject. 

7.  Right  to  irrigate  lost  by  grant  or  prescription. 

8.  Case  of  Miller  v.  Miller.     Limits  of  right  to  divert  water. 

9.  Case  of  Arnold  v.  Foot.     Same  subject. 

10.  Case  of  Elliot  v.  Fitchburg  R.  R.  Co.     Same  subject. 

11.  One  may  not  wholly  stop  a  stream  for  irrigation. 

12.  How  far  and  for  what  one  may  divert  water  from  a  stream. 

13.  What  constitutes  an  easement  in  the  use  of  water. 

14.  No  one  may  divert  water  to  affect  a  mill,  except  as  an  easement. 

15.  What  are  instances  of  easements  in  running  water. 

1.  By  irrigation,  as  here  used,  is  meant,  unless  otherwise 
expressed,  the  application  of  the  waters  of  a  running  stream 
by  a  riparian  proprietor  in  the  cultivation  of  his  land  by 
artificial  means,  and  not  the  overflowing  of  its  natural  banks 
by  periodical  or  extraordinary  freshets  or  swellings  of  the 
stream  beyond  the  customary  quantity  flowing  therein. 
This,  of  course,  implies  a  greater  or  less  degree  of  diversion 
of  water  from  the  stream,  and  the  difficulty  to  which  it  gives 
rise,  of  determining  the  respective  rights  of  successive 
riparian  proprietors  upon  a  stream,  is,  that  while  a  right 
to  divert  water  for  such  purposes,  to  some  extent,  and  under 
certain  circumstances,  is  incident  to  the  ownership  of  the 

soil,  if  it  is  carried  to  a  greater  extent,  or  exercised 
[*229]  under  *different  circumstances,  it  becomes  a  wrong, 

for  which  the  one  causing  it  is  responsible  in  dam- 
ages, unless  it  can  be  justified  by  evidence  of  grant  or  assent 
on  the  part  of  him  whose  property  is  thereby  injuriously 
affected. 

The  point  to  be  determined  in  these  cases  is,  where  the 
right  ends,  and  the  wrong  begins,  in  the  scale  of  admeasure- 


Sect.  2.]  RIGHTS    OF   IRRIGATION.  295 

mcnt  of  such  diversion  ;  for  if  a  riparian  proprietor  tran- 
scends the  right,  he  is  subject  to  an  action  by  otlicr  riparian 
proprietors  whose  rights  are  thereby  affected,  although  no 
actual  damage  can  be  shown  to  have  been  thereby  occasioned. 
Tlie  reason  of  this  rule,  which  is  now  established  by  a  multi- 
tude of  cases,  is,  that  for  every  wrong  the  law  professes  to 
provide  a  remedy,  and  if  a  party  whose  right  in  respect  to 
his  land  has  been  invaded  were  obliged  to  show  an  actual 
damage  sustained  before  he  could  vindicate  his  right  by  an 
action  at  law,  the  repetition  of  the  act  might  often  be  con- 
tinued till  a  prescriptive  right  were  gained  by  such  adverse 
user  in  favor  of  one  whose  original  act  was  confessedly  a 
wrong. 

Bearing  in  mind  that  it  is  not  for  every  diversion  of  water 
that  an  action  will  lie,  but  only  for  such  as  violates  the  right 
of  some  other  person,  as  explained  in  Elliot  v.  Fitchburg  R. 
R.  Co.,  cited  below,  the  following  cases  have  been  selected 
from  a  much  larger  number,  to  show  that  such  action  may 
be  sustained,  though  no  actual  damages  can  be  shown  to 
have  been  occasioned  by  such  diversion,  since  the  law  will 
imply  a  damage  in  such  cases,  ancf  establish  the  right  of 
the  party  assumed  to  be  injured  by  a  solemn  judgment  of 
court.i 

*2.    Therefore,  to  limit  a  land-owner  to  the  mere   [*230] 
benefit  of  having  a  stream  flow  through  his  land,  with- 
out any  right  to  divert  the  same  or  any  part  of  it,  would  be 

1  Hastings  v.  Livermore,  7  Gray,  194;  Elliot  i;.  Fitchburg  R.  K.  Co.,  10 
Cush.  191  ;  Bolivar  Mg.  Co.  v.  Neponset  Mg.  Co.,  16  Pick.  241  ;  Grant  v.  Ly- 
man, 4  Mete.  470 ;  Atkins  v.  Bordman,  2  Mete.  457  ;  Newhall  v.  Ireson,  8 
Cush.  595  ;  Dane  v.  Valentine,  5  Mete.  8  ;  Butman  v.  Hussey,  12  Me.  407  ; 
Whipple  V.  Cumberland  Mg.  Co.,  2  Story,  661  ;  Webb  v.  Portland  Mg.  Co.,  3 
Sumn.  189  ;  Parker  v.  Foote,  19  Wend.  309,  313  ;  Hendrick  v.  Cook,  4  Ga.  241, 
260;  Plumleigh  t).  Dawson,  1  Gilra.  544,  552;  Stein  v.  Burden,  24  Ala.  130, 
148;  Welton  i;.  Martin,  7  Mo.  307  ;  Hulme  v.  Shreve,  3  Green,  Ch.  116;  Par- 
ker V.  Griswold,  17  Conn.  288;  Chatfield  v.  Wilson,  27  Vt.  670;  Sampson  v. 
Hoddinott,  1  C.  B.  n.  s.  590  ;  Wood  v.  Waud,  3  Exch.  748,  772 ;  post,  chap.  6, 
sect.  2,  pi.  1.  Roundtree  v.  Brantley,  34  Ala.  553;  Munroe  v.  Stickney,  48 
Maine,  462 ;  Graver  v.  Shell,  42  Peun.  67  ;  Delaware  Canal  v.  Torrey,  33  Penn. 
143. 


296      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

defeating,  in  a  great  measure,  the  purposes  for  which  Provi- 
dence had  supplied  these  sources  of  comfort  and  convenience 
to  man,  and  the  means  of  fertilizing  the  soil,  and  giving  a 
profitable  employment  for  industry  and  art ;  it  is  accordingly 
held,  that  if,  in  any  question  of  diversion  the  jury  should 
find,  it  was  only  of  such  water  as  the  complaining  party 
could  not  have  used  for  any  beneficial  purpose,  or  that  it 
was  made  in  a  reasonable  manner,  and  for  a  proper  purpose, 
an  action  for  the  same  would  not  lie.  But  as  every  diversion 
is,  prima  facie,  a  violation  of  the  right  of  the  riparian  pro- 
prietor below  to  have  the  benefit  of  the  stream,  ut  currere 
solebat,  an  action  will  lie  therefor,  unless  the  party  causing 
it  can  ground  his  defence  upon  such  a  use  of  it  as  is  above 
supposed.^ 

3.  The  right  to  divert  water,  in  applying  it  to  use  above 
spoken  of,  will  of  course  be  understood  as  one  that  is 
naturally  incident  to  property  in  the  land,  and  if  any  one 
should  lose  this,  or  should  acquire  other  and  more  extensive 
rights  in  this  respect,  it  could  only  be  by  having  become 
subject  to  a  servitude,  or  by  having  acquired  an  easement 
under  some  grant,  actifal  or  implied. 

4.  It  may  be  further  remarked,  that,  in  determin- 
[*231]  ing  what  *is  a  reasonable  use  of  water  by  diversion, 
reference  is  to  be  had  to  the  injury  sustained  thereby 
by  one  as  well  as  the  benefit  obtained  by  the  other.  Thus  it 
might  be  of  great  advantage  to  the  owner  of  a  dry  and 
porous  parcel  of  land  upon  a  stream,  to  spread  the  waters 
thereof  over  its  surface  at  frequent  intervals.  But  if,  in  so 
doing,  the  water  which   operated   an   existing   mill  below 

1  Elliot  V.  Fitchbnrg  E.  K.  Co.,  10  Cush.  191,  195;  Howell  v.  M'Coy,  3 
Rawle,  256,  260 ;  Shrove  v.  Voorhees,  2  Green,  Ch.  25,  34 ;  Williams  v.  Mor- 
land,  2  Barnew.  &  C.  910,  916  ;  Thompson  v.  Crocker,  9  Pick.  59  ;  Cooper  v. 
Hall,  5  Ohio,  320;  Parker  v.  Griswold,  17  Conn.  288,  299;  Embrey  v.  Owen, 
6  Exch.  3.53;  Sampson  v.  Iloddinott,  1  C.  B.  n.  s.  590;  Webb  v.  Portland  Mg. 
Co.,  3  Sumn.  189,  198 ;  Wright  v.  Howard,  1  Sim.  &  S.  190,  203  ;  Tyler  v.  Wil- 
kinson, 4  Mason,  397,  400 ;  Wadsworth  v.  Tillotson,  15  Conn.  366,373;  Piigh 
V.  Wliec'ler,  5  Dev.  &  B.  50,  59;  Van  Hoescn  v.  Coventry,  10  Barb.  518;  3 
Kent,  Comm.  438  ;  Davis  v.  Winslow,  51  Maine,  290. 


Sect.  2.]  RIGHTS   OF  IRRIGATION.  297 

should  be  absorbed  and  wasted,  it  would,  obviously,  be  an 
unreasonable  use  of  what  ought  to  be,  within  proper  limits, 
for  the  benefit  of  both. 

And  in  respect  to  the  general  principles  applicable  to  cases 
of  diversion  of  water,  there  is  no  difference  between  the  rights 
of  the  riparian  proprietor,  whose  land  extends  only  to  the 
centre  of  the  stream,  and  of  him  who  owns  upon  both  sides 
of  it.  Thus,  in  the  case  of  Parker  v.  Griswold,^  the  plaintiff 
owned  land  upon  one  side  only  of  the  stream,  and  the  action 
was  for  diverting  the  water  thereof  by  an  artificial  trench, 
and  not  returning  the  same  into  the  stream  until  after  it  had 
passed  the  plaintiff's  land.  The  action  was  sustained,  al- 
though the  plaintiff  had  never  appropriated  the  water  of  the 
stream  to  use,  and  no  damages  were  shown  to  have  resulted 
to  him  from  such  diversion.  So,  in  the  case  of  Tyler  v. 
WilkinsoUj^  the  language  of  Story,  J.  upon  this  point  is  : 
"  Prima  fade,  every  proprietor  upon  each  bank  of  a  river  is 
entitled  to  the  land  covered  with  water  in  front  of  his  bank 
to  the  middle  thread  of  the  stream.  In  virtue  of  this  own- 
ership he  has  a  right  to  the  use  of  the  water  flowing  over  it, 
in  its  natural  current,  without  diminution  or  obstruction. 
....  The  consequence  of  this  principle  is,  that  no  proprie- 
tor has  a  right  to  use  the  water  to  the  prejudice  of  another. 
....  In  their  character  as  riparian  proprietors,  they  have, 
annexed  to  their  lands,  the  general  flow  of  the  river, 
so  far  as  it  has  not  been  already  *acquired  by  some  [*232]  • 
prior  and  legally  operative  appropriation." 

6.  The  application  of  the  foregoing  principles  to  the  sub- 
ject of  irrigation  may  be  best  illustrated  by  a  reference  to  a 
few  leading  cases  involving  an  inquiry  into  the  mode  and 
extent  to  and  in  which  this  may  be  done. 

In  the  case  of  Weston  v.  Alden,^  the  controversy  was  be- 
tween two  owners  of  meadows  upon  the  same  stream.     The 

1  Parker  v.  Griswold,  17  Conn.  288. 

2  Tyler  v.  Wilkinson,  4  Mason,  397,  403.     See  5  Duranton,  Cours  de  Droit 
Fran9ais,  203. 

8  Weston  V.  Alden,  8  Mass.  136. 


298  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

defendant,  by  sluices  cut  in  the  bank  of  the  stream,  diverted 
the  water  thereof  on  to  his  meadow,  whereby  some  part  of  it 
was  absorbed  and  wasted,  but  returned  all  the  remainder 
into  the  stream  before  reaching  the  plaintiff's  meadow  below. 
The  court  held,  that  '•  a  man  owning  a  close  on  an  ancient 
brook  may  lawfully  use  the  water  thereof  for  the  purpose  of 
husbandry,  as  watering  his  cattle,  or  irrigating  the  close, 
and  he  may  do  this,  either  by  dipping  water  from  the  brook 
and  pouring  it  upon  his  land,  or  by  making  small  sluices  for 
the  same  purpose.  And  if  the  owner  of  a  close  below  is 
damaged  thereby,  it  is  damnum  absque  injuria^ 

In  Blancliard  v.  Baker,i  Weston,  J.,  in  referring  to  the 
rights  of  a  riparian  proprietor,  connected  with  the  remark, 
that  "  he  may  make  a  reasonable  use  of  the  water  itself  for 
domestic  purposes,  for  watering  cattle,  or  even  for  irrigation, 
provided  that  it  is  not  unreasonably  detained,  or  essentially 
diminished,"  adds,  that,  "  although  by  the  case  of  Weston  v. 
Alden  the  right  of  irrigation  might  seem  to  be  general  and 
unlimited,  yet  subsequent  cases  have  restrained  it  consistent- 
ly with  the  enjoyment  of  the  common  bounty  of  nature  by 
other  proprietors,  through  whose  land  a  stream  had  been 
accustomed  to  flow.  And  the  qualification  of  the  right  by 
these  later  decisions  is  in  accordance  with  the  common 
law." 

The  case  of  Perkins  v.  Dow^  is  earlier  than  either 
[*233]  of  the  *above,  and  was  one  between  the  owner  of  an 
ancient  mill  and  a  riparian  proprietor  above,  for 
diverting  the  water  for  purposes  of  irrigation.  The  court 
held  that  ho  had  a  right  to  diminish  the  quantity  of  water  in 
the  stream  as  against  the  mill  owner  below,  by  spreading  it 
upon  the  land  to  manure  and  enrich  it,  provided  he  did  it 
prudently,  and  did  not  deprive  the  mill-owner  of  the  surplus. 

The  case  of  Colburn  v.  Richards  ^  differs  from  that  of 

1  Blancluird  v.  IJakcr,  8  Me.  253,  2G6. 

2  Perkins  v.  Dow,  1  Root,  535. 

8  Colburn  v.  llicliards,  13  Mass.  420. 


Sect.  2.]  RIGHTS   OF  IRRIGATION.  299 

Weston  V.  Alden  by  the  fact  that  the  land-owner  stopped 
the  stream  altogether  by  a  dam,  in  order  to  raise  a  head  of 
water  whereby  to  irrigate  his  land,  until  it  rose  and  ran  over 
the  dam,  and  thereby  an  ancient  mill  of  the  i)lainti(r  was 
injuriously  affected  ;  and  it  was  held  to  be  an  unlawful  act 
on  the  part  of  the  land-owner. 

So  in  Anthony  v.  Lapham,i  in  which  the  controversy  was 
between  two  owners  of  meadows  upon  a  stream,  the  upper 
one  stopped  the  water  by  a  dam,  so  that  a  large  portion  of  it 
was  diverted  on  to  his  land,  where  much  of  it  was  absorbed 
or  evaporated,  and  the  same  was  not  returned  into  the  stream. 
The  court  recognize  the  general  right  of  diverting  water  for 
purposes  of  irrigation,  and,  in  giving  judgment  in  favor  of 
the  lower  owner,  lay  stress  upon  the  circumstance  that  the 
upper  one  had  stopped  the  water  by  a  dam,  and  remark,  in 
regard  to  irrigation,  "  he  must  use  it  in  this  latter  way  so  as 
to  do  the  least  possible  injury  to  his  neighbor,  who  has  the 
same  right." 

6.  The  discussion  can  hardly  be  complete  without  refer- 
ring to  two  or  three  recent  English  cases  where  the  subject 
of  irrigation  is  considered,  and  in  which  the  courts  take 
occasion  to  speak  of  several  of  the  American  cases,  already 
cited,  with  approbation,  and  to  intimate  that  the  American 
law  upon  the  subject  is  much  less  stringent  than  that  of 
England ;  which,  perhaps,  may  be  accounted  for  by 
the  size  and  *quantity  of  water  of  many  of  the  mill-  [*234] 
streams  in  this  country  compared  with  those  of 
England. 

In  Enibrey  v.  Owcn,^  the  plaintiff  was  a  mill-owner  upon 
a  stream  upon  which  the  defendant  owned  meadows  situate 
above  this  mill,  which  he  had  been  in  the  habit  of  irrigating 
at  irregular  intervals,  but  only  when  the  stream  was  full, 
and  when  no  actual  damage  was  thereby  done  to  the  plain- 

1  Anthony  v.  Lapliam,  5  Pick.  175. 

2  Embrey  v.  Owen,  6  Exch.  353.  See  Masoa  v.  Hill,  3  Barnew.  &  Ad.  30-t ; 
Crooker  v.  Bnig-,%  10  Wend.  260. 


300  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.         [Cii.  III. 

tiff's  mill.  And  it  was  held,  that  by  so  doing  he  violated  no 
rights  of  the  plaintiff,  but  simply  exercised  such  as  belonged 
to  himself.  Parke,  B.,  in  giving  judgment,  examines  the 
respective  rights  of  the  parties  as  to  diverting  water  for 
purposes  of  irrigation,  and  intimates  that  it  would  not  be 
allowed,  as  in  the  United  States,  to  cut  sluices  for  the  pur- 
pose in  the  banks  of  the  stream,  but  states  that  each  case 
must  depend  upon  its  own  circumstances.  It  is,  in  his  judg- 
ment, a  question  of  degree,  and  it  is  impossible  to  draw 
precise  limits  between  what  is  a  reasonable  and  what  a 
wrongful  use.  And  the  only  general  rule  to  be  drawn  from 
the  case  seems  to  be,  that  while  each  riparian  proprietor 
has  a  right  to  the  usufruct  of  the  stream  flowing  through 
or  along  his  land,  this  right  is  subject  to  similar  rights  on 
the  part  of  the  proprietors  on  each  side  of  the  stream, 
within  reasonable  limits  of  enjoyment,  while  an  action  will 
lie  only  for  an  unreasonable  and  unauthorized  exercise  of 
the  right. 

The  other  case  referred  to  is  that  of  Sampson  v.  Hoddi- 
nott,^  where  the  question  was  between  two  owners  of  mead- 
ows. The  defendant  had  stopped  the  water  of  a  stream 
running  through  the  meadows  of  the  parties,  for  the  pur- 
pose of  irrigating  the  upper  meadow.  The  effect  was  that 
the  water,  instead  of  reaching  the  lower  meadow  in  the 
early  part  of  the  day,  did  not  reach  there  till  so  late  in  the 
afternoon  that  the  owner  of  the  meadow  could  not  usefully 

apply  it  in  irrigating  it  as  he  wished  to  do. 
[*235]  *The  court  treat  the  right  of  irrigation  as  one  be- 
longing to  a  riparian  proprietor  as  an  incident  to  his 
estate,  which  he  is  at  liberty  to  use  or  not,  but  does  not  lose 
it  by  neglecting  to  use  it,  although  a  proprietor  below  him 
may  have  exercised  the  like  right  upon  his  own  land,  and  al- 
though the  lower  proprietor  may  be  somewhat  injured  in  the 
enjoyment  of  his  right  by  the  upper  one  beginning  to  ex- 

1  Sampson  v.  Hoddinott,  1  C.  B.  n.  s.  590 ;  Crossley  v.  Lightowler,  L.  K.  3 
Eq.  296. 


Sect.  2.]  EIGHTS  OF  ^IRRIGATION.  301 

ercise  that  Ijclonging  to  himself.  No  user  bj  a  riparian  pro- 
prietor affects  the  natural  rights  of  other  proprietors  above  or 
below  him,  unless  it  be  of  a  nature  to  affect  the  use  they 
have  made,  or  the  power  to  use  such  rights,  and  thereby  to 
raise  a  presumption  of  a  grant,  and  so  as  to  render  the  tene- 
ment above  or  below  a  servient  one.  Merely  using  the 
stream  for  irrigation,  in  the  exercise  of  a  natural  right,  how- 
ever long  continued,  would  not  have  the  effect  to  make  the 
upper  or  lower  tenement  a  servient  one,  or,  in  any  way,  af- 
fect the  natural  right  of  the  owner  as  to  the  use  of  the  water. 
If  the  use  be  of  more  than  the  natural  right,  the  owner  of 
the  other  tenement  may  have  an  action,  whether  he  has  be- 
gun to  use  it  on  his  own  land  or  not,  for  it  is  an  invasion  of 
his  right,  and  he  may  defend  it  by  a  suit,  though  he  may  not 
be  able  to  show  actual  damages.  The  owner  of  an  upper 
tenement  might  divest  himself,  by  grant,  of  his  right  to  use 
the  water  for  irrigation.  But  a  mere  non-user  of  the  right 
would  raise  no  presumption  of  such  a  grant.  But  the  court 
held  that  the  mode  of  using  the  defendant's  right  in  this  case, 
by  penning  up  the  entire  water  for  a  part  of  the  day,  and 
thereby,  during  that  time,  wholly  depriving  the  plaintiff  of 
the  natural  flow  of  the  stream,  was  an  unreasonable  one,  for 
which  he  was  liable  in  the  present  action. 

7.  In  the  latter  position  the  court  assume  the  same  ground 
as  that  upon  which  the  case  of  Colburn  v.  Richards,  above 
cited,  seems  to  have  been  decided.  And  the  suggestion, 
that  an  upper  proprietor  may  lose  his  right  to  irrigate  his 
lands  by  grant,  is  in  accordance  with  the  doctrine  of 
*the  case  of  Cook  v.  Hull,^  where  it  was  held  that  [*236] 
the  owner  of  a  mill  may,  by  long  exclusive  enjoyment 
of  the  entire  waters  of  a  stream,  the  same  being  necessary  for 
the  working  of  the  mill,  exclude  the  riparian  proprietor 
above  from  diverting  any  part  thereof  for  purposes  of  irriga- 
tion, if  by  such  diversion  he  is  injuriously  affected  in  the  ope- 
ration of  the  mill.     In  that  case  the  mill  had  enjoyed  the 

1  Cook  r.  Hull,  3  Pick.  269.     See  also  Colburn  v.  i:ichards,  13  Mass.  420. 


802  TEE   LAW   OF   EASEMEi^TS   AND   SERVITUDES.         [Cn.  IIL 

water  adversely  for  forty  years,  but,  under  the  modern  rule 
as  to  prescription,  twenty  years  would  undoubtedly  be  equal- 
ly effectual. 

8.  The  court  of  Pennsylvania  considered  this  sul)jcct  in 
the  case  of  Miller  v.  Miller,^  where  the  defendant  had  con- 
veyed to  the  plaintiff  a  parcel  of  land  situate  upon  a  stream, 
and  subsequently  diverted  portions  of  the  water  for  the  pur- 
pose of  irrigating  his  other  lands  lying  upon  the  same  stream. 
As  no  reference  is  made  to  any  mill,  it  is  to  be  presumed 
that  the  question  was  simply  between  two  land-holders,  where 
one  claimed  damages  for  being  deprived  of  the  natural  flow 
of  the  stream  running  through  his  land.  In  speaking  of  the 
rights  of  such  proprietors,  the  court  say  :  "  The  law  requires 
of  the  party  that  he  should  use  the  stream  in  a  reasonable 
manner,  and  one  of  the  conditions  of  the  use  is,  that  he  do 
not  destroy,  or  render  useless,  or  materially  lessen  or  affect 
the  application  of  the  water  by  those  situated  above  or  below 
him  on  the  stream 

"  The  reasonableness  of  the  detention  of  the  water  by  the 
upper  proprietor,  must  depend  on  the  circumstances  of  each 
case,  and  is  to  be  judged  of  by  the  jury."  And  they  illus- 
trate the  remark,  by  supposing  the  case  of  a  large  stream, 
where  the  diversion  for  purposes  of  irrigation  might  hardly 
be  perceptible  in  its  effects  upon  the  volume  of  the  stream  ; 
and  another,  of  a  very  small  stream,  where  such  diversion 
might  absorb,  substantially,  the  whole  of  the  stream  ; 
[*237]  in  *regard  to  which  different  rules  would  be  applied 
in  determining  the  reasonableness  of  the  use.  The 
only  practical  test  which  they  suggest  is,  that  an  action 
would  be  for  a  diversion,  "  whenever  so  much  of  the  volume 
of  water  is  obstructed  as  to  be  plainly  perceptible  in  its  prac- 
tical uses  below." 

9.  This  reference  to  the  size  and  state  of  a  stream,  in  de- 
termining the  respective  rights  of  riparian  proprietors  along 
its  course,  to  ap})ly  its  waters  for  purposes  of  irrigation,  is 

1  Miller  V.  Miller,  9  Pcnn.  St.  "4. 


Sect.  2.]  RIGHTS   OF   IRRIGATION.  303 

adopted  by  the  court  of  New  York,  also,  in  the  case  of  Ar- 
nold V.  Foot,^  above  cited. 

The  action  in  that  case  was  for  diverting  and  wasting  the 
waters  of  a  spring,  which  had  previously  flowed  from  the 
defendant's  land  through  that  of  the  plaintiff's.  The  court 
say  :  "  The  defendant  had  a  right  to  use  so  much  of  the 
water  as  was  necessary  for  his  family  and  his  cattle,  but  had 
no  right  to  use  it  for  irrigating  his  meadow,  if  thereby  he  de- 
prives the  plaintiff  of  the  reasonable  use  of  the  water  in  its 
natural  channel,"  and  cite  the  language  of  Nelson,  J.,  in 
Crooker  v.  Bragg.^  When  speaking  of  the  right  to  running 
water,  he  says :  "  We  cannot  take  from  one  party  a  right  for 
the  sake  of  the  convenience  of  another." 

So,  where  the  owner  of  land,  in  which  was  a  spring  of  water 
with  a  watercourse  from  it  into  the  land  of  an  adjacent 
owner,  stopped  the  flow  and  used  it  for  irrigation  on  his 
land  in  a  proper  manner,  but  thereby  wholly  deprived  the 
adjacent  land-owner  of  the  same,  it  was  held  that  he  had  no 
right  thus  to  do.  While  he  had  a  right  to  apply  it  in  a  reason- 
able manner  and  in  a  reasonable  quantity  for  irrigation,  he 
was  not  at  liberty  to  deprive  the  adjacent  owner  of  what  he 
needed  for  his  cattle.^ 

10.  But  the  point  is  so  fully  considered,  and  so  clearly 
stated  and  illustrated,  by  Shaw,  C.  J.,  in  Elliot  v.  Fitchburg 
R.  R.  Co.,  that  little  need  be  added  to  the  doctrine  there 
laid  down.  The  stream,  in  that  case,  was  a  small  one,  and 
was  fed,  in  part,  by  a  spring. 

The  defendants,  under  a  grant  from  the  owner  of  the  land, 
had  erected  a  dam  just  below  the  spring,  whereby  they  raised 
a  reservoir,  from  which,  by  means  of  pipes,  they  drew  water 
to  supply  their  engines  used  upon  their  railroad. 

The  plaintiff  owned  land  through  which  the  original  stream 
flowed ;  the  land  of  another  proprietor  intervening  between 

1  Arnold  v.  Foot,  12  Wend.  330.     See  ante,  chap.  3.  sect.  1,  pi.  15. 

2  Crooker  v.  Brag<r,  10  Wend.  2f)4. 
s  Gillctt  V.  Johnson,  30  Conn.  180. 


304      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  IH. 

the  lot  ill  which  was  the  dam  and  the  plaintiff's  land.  The 
action  was  for  this  diversion  by  means  of  the 
[*238]  *pipes  laid  from  the  reservoir,  in  which  the  plain- 
tiff claimed  to  recover,  though  he  failed  to  show 
any  actual  damages  occasioned  thereby.  But  the  court 
held  that  he  could  not  recover  unless  he  could  show  some 
actual  appreciable  damage,  because,  to  a  certain  extent,  a 
right  to  divert  the  water  for  use  was  incident  to  the  land  on 
which  the  dam  was,  and  if  they  had  not  transcended  this,  the 
defendants  had  violated  no  right  of  the  plaintiff, 

"  This  appears,"  says  the  Chief  Justice,  "  to  have  been  a 
small  stream  of  water,  but  it  must,  we  think,  be  considered 
that  the  same  rules  of  law  apply  to  it,  and  regulate  the  rights 
of  riparian  proprietors  through  and  along  whose  lands  it 
passes,  as  are  held  to  apply  to  other  watercourses,  subject  to 
the  consideration  that  what  would  be  a  reasonable  and 
proper  use  of  a  considerable  stream,  ordinarily  carrying  a 
large  volume  of  water,  for  irrigation,  or  other  similar  uses, 
would  be  an  unreasonable  and  injurious  use  of  a  small 
stream  just  sufficient  to  furnish  water  for  domestic  uses,  for 
farm-yards,  and  watering-places  for  cattle 

"  The  right  of  flowing  water  is  now  well  settled  to  be  a 
right  incident  to  the  property  in  the  land.  It  is  a  right 
jjuhlici  juris,  of  such  a  character  that,  while  it  is  common 
and  equal  to  all  through  whose  land  it  runs,  and  no  one  can 
obstruct  or  divert  it,  yet,  as  one  of  the  beneficial  gifts  of 
Providence,  each  proprietor  has  a  right  to  a  just  and  reason- 
able use  of  it  as  it  passes  through  his  land,  and  so  long  as  it 
is  not  wholly  obstructed  or  diverted,  or  no  larger  appropria- 
tion of  the  water  running  through  it  is  made  than  a  just  and 
reasonable  use  of  it,  it  cannot  be  said  to  be  wrongful  or  in- 
jurious to  a  proprietor  lower  down.  What  is  a  just  and 
reasonable  use  may  often  be  a  difficult  question,  depending 
on  various  circumstances. 

"  To  take  a  quantity  of  water  from  a  large  running  stream 
for  agricultural  or  manufacturing  purposes  would  cause  no 


Sect.  2.]  RIGHTS   OF   IRRIGATION.  305 

sensible  or  practicable  diminution  of  the  benefit  to  the  preju- 
dice of  a  lower  proprietor,  whereas,  taking  the  same 
quantity  *from  a  small  running  brook,  passing  [*239] 
througli  many  farms,  would  be  of  great  and  mani- 
fest injury  to  those  below  who  need  it  for  domestic  supply, 
or  watering  cattle,  and  therefore  it  would  be  an  unrea- 
sonable use  of  the  water,  and  an  action  would  lie  in  the 
latter  case,  and  not  in  the  former.  It  is,  therefore,  to  a 
considerable  extent  a  question  of  degree.  Still  the  rule  is 
the  same,  that  each  proprietor  has  a  right  to  a  reasonable  use 
of  it  for  his  own  benefit,  for  domestic  use  and  for  manufac- 
turing and  agricultural  purposes It  has  sometimes 

been  made  a  question,  whether  a  riparian  proprietor  can 
divert  water  from  a  running  stream  for  purposes  of  irriga- 
tion. But  this,  we  think,  is  an  abstract  question,  which 
cannot  be  answered  either  in  the  affirmative  or  negative,  as 
a  rule  applicable  to  all  cases.  That  a  portion  of  the  water 
of  a  stream  may  be  used  for  the  purposes  of  irrigating  land 
we  think  is  well  established  as  one  of  the  rights  of  the  pro- 
prietors of  the  soil  along  or  through  which  it  passes.  Yet  a 
proprietor  cannot,  under  color  of  that  right,  or  for  the 
actual  purpose  of  irrigating  -his  own  land,  wholly  abstract 
or  divert  the  watercourse,  or  take  such  unreasonable  quanti- 
ty of  water,  or  make  such  unreasonable  use  of  it,  as  to 
deprive  other  proprietors  of  the  substantial  benefit  which 
they  might  derive  from  it,  if  not  diverted  or  used  unreason- 
ably  The    right    to    the    use   of    flowing  water  is 

piiblici  juris,  and  common  to  all  the  riparian  proprietors  ; 
it  is  not  an  absolute  and  exclusive  right  to  all  the  water 
flowing  past  their  land,  so  that  any  obstruction  would  give  a 
cause  of  action,  but  it  is  a  right  to  the  flow  and  enjoyment 
of  the  water,  subject  to  a  similar  right  in  all  the  proprietors, 
to  the  reasonable  enjoyment  of  the  same  gift  of  Providence. 
It  is  only,  therefore,  for  an  obstruction  and  deprivation  of 
this  common  benefit,  or  for  an  unreasonable  and  unauthor- 
ized use  of  it,  that  an  action  will  lie.     But  for  such  depriva- 

20 


306      THE  LAV  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

tion  or  unwarrantable  use  an  action  will  lie,  though  there  be 
no  actual,  present  damage." 

11.  Two  things,  however,  should  be  kept  in  mind 
[*240]  in  *considering  this  sul)ject :  —  1.  That  any  diver- 
sion of  water,  properly  so  called,  except  for  domestic 
use  or  purposes  of  irrigation,  is  a  violation  of  the  natural 
rights  of  property  in  the  riparian  proprietors  below  ;  and,  2. 
As  seems  to  be  more  than  indicated  by  the  cases  already 
cited,  a  riparian  proprietor  may  not  stop  the  flow  of  the 
entire  stream  by  a  dam,  and  pen  the  same  back  for  the 
purposes  even  of  irrigation,  if  thereby  he  substantially  de- 
prives other  proprietors  upon  the  stream  of  the  natural  flow 
thereof.  "  Whether  or  not,"  in  the  language  of  Harris,  J., 
in  Van  Hoesen  v.  Coventry,  "  a  diversion  of  water  is  reason- 
able, is  a  question  not  so  much  as  mentioned  by  any  writer 
or  judge.  The  very  proposition  assumes  the  right  of  the 
proprietor  above  to  use  the  water  for  his  own  purposes,  to  the 
exclusion  of  the  proprietor  below,  a  proposition  inconsistent 
with  the  doctrine  universally  admitted,  as  we  have  seen,  that 
all  the  proprietors  have  the  same  rights."  ^ 

12.  As  the  uses  above  spoken  of  are  not,  properly,  those 
of  servitude  or  easement  between  dominant  and  servient 
estates,  nor  is  it  easy  to  define  them,  except  as  they  are 
something  gained  to  one  estate  or  lost  to  the  other  beyond 
what  naturally  belongs  to  it  of  right ;  it  may  be  well  to 
repeat,  that  the  right  of  a  riparian  proprietor,  jure  natures, 
to  divert  water  from  a  stream,  when  reduced  to  a  simple 
proposition,  seems  to  be  this.  He  may  not  do  it  for  any 
purpose  except  domestic  uses,  and  that  of  irrigating  his 
land  ;  and  whether,  and  to  what  extent,  he  may  do  the 
latter  depends,  in  each  particular  case,  upon  whether  it  is 
reasonable,  having  regard  to  the  condition  and  circumstances 
of  other  proprietors  upon  the  stream,  and  this  is  to  be 
determined,  in  all  cases  of  doubt,  by  a  jury.  But  in  no  case 
may  he  do  this  so  as  to  destroy,  or  render  useless,  or  materi- 

1  Van  llocscn  v.  Coventry,  10  Barb.  518,  522. 


Sr.CT.  2.]  RIGHTS    OF   IRRIGATION.  307 

ally  diminish  or  affect  the  application  of  the  water  by  the 
other  proprietors.^ 

*13.  It  follows,  from  what  has  gone  before,  that  if  [*241] 
by  any  means  a  proprietor  of  land  upon  a  stream 
shall  have  acquired  rights  to  the  enjoyment  of  the  water, 
beyond  those  naturally  belonging  to  the  same,  as  above  lim- 
ited and  explained,  it  must  have  been  done  at  the  expense  of 
the  right  of  some  other  proprietor,  by  grant  or  otherwise,  in 
relation  to  whose  estate  his  own  becomes  a  dominant  to  the 
other  as  a  servient  one.  In  other  words,  his  own  thereby 
gains  an  easement  while  the  other  is  subjected  to  a  servi- 
tude. 

How  easements  may  be  acquired  by  grant  or  an  adverse 
user,  which  is  regarded  as  evidence  of  a  grant,  was  consid- 
ered in  a  former  part  of  this  work.^  But  as  this,  so  far  as 
it  is  necessary,  can  better  be  illustrated  when  treating  of  the 
rights  of  mill-owners  in  connection  with  those  of  irrigation, 
than  by  regarding  them  separately,  whatever  is  necessary  to 
be  added  upon  the  subject  of  irrigation  will  be  placed  under 
the  rights  of  mill-owners,  in  order  to  avoid  unnecessary  rep- 
etition, 

14.  It  is  hardly  necessary  to  premise,  after  what  has  been 
said,  that  one  may  acquire  an  easement  to  divert  water, 
whether  for  irrigation  or  other  purposes,  by  grant  or  adverse 
user,  as  against  other  riparian  proprietors  below,  whether  it 
be  to  the  injury  of  the  land-owner,  as  such,  or  of  an  existing 
mill  upon  the  stream.  But  he  may  not  without  a  grant 
begin  to  divert  the  water  of  a  stream  for  any  purpose,  so  as 
materially  to  injure  an  existing  mill,  though  it  may  not  have 
stood  for  twenty  years.^ 

1  3  Kent,  Comm.  440 ;  approved  and  commended  in  Embrey  v.  Owen,  6 
Exch.  353  ;  Wood  v.  Waud,  3  Exch.  748  ;  Sampson  v.  Hoddinott,  1  C.  B.  n.  s. 
590;  Webb  v.  Portland  Mg.  Co.,  3  Sumn.  189,  199;  Piatt  v.  Root,  1.5  Johns. 
218;  Wadsworth  v.  Tillotson,  1.5  Conn.  366,375;  Twiss  v.  Baldwin,  9  Conn. 
291,  308  ;  Miller  v.  Miller,  9  Penn.  St.  74  ;  Hetrick  v.  Deachler,  6  Penn.  St.  32  ; 
Pugh  V.  Wheeler,  5  Dev.  &  B.  .50,  55,  59. 

2  Ante,  chap.  1,  sect.  4. 

8  Ward  V.  Kobins,  15  Mees.  &  W.  237  ;  Arnold  v.  Foot,  12  Wend.  330,  333  ; 


308  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

[*242]  *15.  It  may  be  further  added,  that  whatever  would 
constitute  a  nuisance  or  injury  to  an  incorporeal 
right  of  another,  in  respect  to  the  use  or  enjoyment  of  run- 
ning water  as  an  element,  may,  as  a  general  proposition, 
grow  into  a  right  of  adverse  enjoyment,  by  grant,  or  such 
use  as  is  evidence  of  a  grant,  and  thereby  become  an  ease- 
ment which  one  land-owner  may  have  in  that  of  another. 
And  among  the  familiar  illustrations  which  have  before  been 
mentioned,  are  those  of  watering  cattle,  or  taking  water  for  cu- 
linary or  domestic  purposes,  at  a  spring  or  watercourse  in  an- 
other's land,  as  easements  belonging  to  an  ancient  messuage 
in  possession  of  him  who  claims  to  exercise  such  right.^ 


SECTION  III. 

OF   THE   USE   OF   WATER   FOR   MILLS. 

1.  Of  the  right  to  obstruct  the  flow  of  water  for  mills. 

2.  Who  may  exercise  this  right. 

3.  Definition  of  mill-site,  mill-privilege,  &c. 

4.  How  occupying  one  affects  another  mill-privilege. 

5.  Case  of  Bealey  v.  Shaw. 

6.  Effect  of  a  prior  occupation  of  a  mill-site. 

7.  Mill-owners  regarded  as  riparian  owners. 

8.  Effect  of  prior  occupation  of  mill-sites.    American  cases. 

9.  Same  subject.     English  cases. 

10.  Same  subject.     Pugh  v.  Wheeler,  &c. 

11.  Effect  of  parts  of  one  privilege  being  on  separate  owners'  lands. 

12.  Manner  and  extent  of  use  of  water  for  mills. 

13.  When  a  mill-dam  may  set  back  water  upon  land  of  another. 

14.  Whether  a  mill-dam  may  set  back  water  into  the  stream  above. 

15.  How  far  a  mill-dam  must  cause  actual  damage,  to  be  a  nuisance. 

16.  Mill-owner  liable,  if  he  actually  flows  beyond  the  line  of  his  land. 

17.  Mill-owner  may  not  enlarge  the  quantity  in  the  stream. 

18.  Unless  such  increase  result  from  cultivating  the  land. 

19.  What  a  mill-owner  does  not  appropriate  is  open  for  others. 

20.  Effect  of  double  ownership  of  mill  and  land-owner  on  his  rights. 

21.  Extent  of  his  right  to  the  fall  of  water  within  his  land. 

22.  When  liable  for  flowing  on  to  others'  lands.     When  this  by  ice. 

Frankum  v.  Falmouth,  6  Carr.  &  Y.  529 ;  Mason  v.  Hill,  5  Barnew.  &  Ad.  1 
Cox  V.  M-itthcws,  1  Ventr.  237  ;  Buddington  v.  Bradley,  10  Conn.  213,  219. 
1  Manning  v.  Wasdule,  5  Adolph.  &  E.  758. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  309 

*28.  Right  of  mill-owner  to  disch.arge  water  on  to  lands  below.  [*243] 

24.  One  may  change  the  stream  in  his  own  land. 

25.  Mill-owners  on  the  same  stream  may  each  use  it  reasonably. 

26.  What  is  a  reasonable  use  has  reference  to  the  several  proprietors. 

27.  No  mill-owner,  as  such,  may  divert  water  of  a  stream. 

28.  How  far  the  owner  above  may  use  water  to  the  injury  of  one  below. 

29.  Of  detaining  water  by  upper  mills  to  injury  of  a  lower  one.     Cases. 

30.  How  mills  are  to  be  managed  in  reference  to  each  other. 
30  rt.  Rights  to  establisli  and  iise  reservoirs. 

31.  Ownership  of  mill-priyileges  in  common. 

32.  Same  rule  as  to  diversion  in  public  and  private  streams. 

33.  Lower  mills  may  avail  of  improvements  made  by  upper  ones. 

34.  Rule  as  to  diverting  water  extends  to  remote  sources  of  the  stream. 

35.  Wliat  use  of  water  in  reference  to  mills  is  an  easement. 

36.  When  a  specific  use  is  a  measure  of  power  granted. 

37.  Of  a  grant  by  an  owner  on  one  side  to  the  owner  on  the  other. 

38.  A  use  that  woi;ld  be  a  nuisance  may  become  an  easement. 

39.  A  right  to  control  water  for  a  mill,  no  objection  to  its  use  bj'  land-owner. 

40.  No  adverse  right  gained  by  use,  unless  it  invades  existing  rights. 

41.  A  right  to  divert  water  may  be  gained  by  adverse  user. 

42.  What  rights  as  to  another's  land  may  be  gained  by  prescription. 

43.  One  may  gain  a  right  to  increase  his  fall  by  prescription. 

44.  Right  of  mill-owner  to  clear  his  race  in  another's  land. 

45.  Right  to  repair  embankments  on  another's  land. 

46.  Effect  of  changing  form  or  use  of  a  mill  upon  its  rights. 

47.  Effect  of  changing  the  channel  of  the  stream  as  to  mills. 

48.  A  right  to  foul  water  a  limited  one. 

49.  Degree  of  care  to  be  exercised  in  respect  to  mills. 

50.  How  far  a  mill-owner  liable  for  damage  by  freshets. 

51.  When  owner  of  mill  liable  for  water  soaking  into  other  lands. 

52.  Remedy  which  owner  of  a  mill  has  for  obstructing  it. 

53.  Case  of  Rogers  v.  Bruce.     One  of  limited  easement. 

1.  One  of  the  most  common  instances  of  acquiring  a  right 
by  adverse  enjoyment,  is  that  of  obstructing  the  waters  of  a 
stream,  and  often  of  thereby  setting  back  water  upon  the 
land  of  another,  by  means  of  a  dam  erected  upon  the  owner's 
land,  for  the  purpose  of  raising  a  head  of  water  for  the  oper- 
ation of  mills  or  hydraulic  works.  If  this  is  continued  un- 
interruptedly and  adversely  for  the  term  of  twenty  years,  the 
mill-owner  acquires  thereby  an  easement,  or  right  to  obstruct 
such  stream,  or  to  flow  such  land,  to  the  extent  to  which  it 
shall  have  been  enjoyed.^ 

1  Townscnd  r.  M'Donald,  14  Barb.  460,  467;  Hart  v.  Vose,  19  Wend.  365; 
Colvin  V.  Burnet,  17  Wend.  564,  567;  Wright  v.  Howard,  1  Sim.  &  S.  190, 
203;  Hurlburt  v.  Leonard,  Brayt.  201  ;  Middletoa  v.  Gregoric,  2  Rich.  631. 


310  THE  LAW   OF  EASEMENTS  AND   SERVITUDES.         [Ch.  Ill, 

A  right  to  pond  water  upon  another's  land  is  an  incor- 
poreal hereditament.  It  is  a  freehold  interest,  and  can  only 
pass  by  deed,  if  regarded  as  a  permanent  right.  But  if  it  be 
a  mere  license,  it  is  revocable.  But  equity,  in  some  of  the 
States,  will  enforce  an  executed  license,  though  by  parol,  if 
granted  upon  a  consideration,  or  upon  the  faith  of  which 
money  has  been  expended,  if  the  licensee  would  be  without 
adequate  compensation  if  the  license  were  revoked.^ 

But  a  mill-dam  cannot,  lawfully,  be  maintained  so  as  to 
interfere  with  or  essentially  lessen  the  use  of  a  naturally 
navigable  stream  for  purposes  of  a  highway,  unless  the  dam 

itself  creates  the  navigable  quality  of  the  stream.^ 
[*244]  *From  the  importance  of  hydraulic  works  of  art, 
for  the  comfort  and  convenience  of  man,  and  from 
the  ordinary  necessity  there  is  of  raising  a  head  of  water  by 
means  of  a  dam,  in  order  to  create  the  power  requisite  to 
operate  the  same,  a  right  to  do  this  by  any  riparian  proprie- 
tor is  deemed  to  be  incident  to  the  property  in  the  land,  jure 
nature,  in  the  same  sense  as  that  of  applying  water  to  pur- 
poses of  irrigation.  And  inasmuch  as  to  cause  this  obstruc- 
tion necessarily  hinders  the  flow  of  a  stream,  to  a  greater  or 
less  interference  with  the  enjoyment  of  the  same  by  other  mill 
or  land  owners,  the  same  rule  of  reasonableness  in  its  appli- 
cation is  applied  in  the  case  of  mills  as  in  that  of  irrigation. 
And  although  the  exercise  of  this  right,  so  long  as  it  is  con- 
fined within  the  limits  of  the  estate  of  the  mill-owner,  can 
hardly  be  called  a  proper  easement,  or  the  obligation  to  suf- 
fer it  to  be  done  be  called  a  servitude,  yet  the  rights  which 
every  mill-owner  has  to  receive  the  flow  of  water  from  a 
superior  riparian  proprietor,  and  to  discharge  the  same  upon 
the  land  of  a  lower  one,  are  spoken  of  by  courts  and  writers  as 
"  natural  servitudes  and  easements,"  although  not,  even  in 
theory,  held  by  virtue  of  any  grant  from  these  proprietors.^ 

1  Bridges  V.  Turccll,   1    Dev.  &  Bat^  497  ;   Snowdca  v.  Wilas,  19  Ind.   13. 
Ante,  pp.  23,  24,  and  cases  cited. 

2  Hall  V.  Lacy,  3  Grant's  Cas.  204. 

3  Kauffman  v.  Giicseincr,  26  I'cnn.  St.  407 ;  Prescott  v.  Williams,  5  Mete. 


Sect.  3.]  1  USE   OF   WATER   FOR   MILLS.  311 

2.  It  becomes  necessary,  in  the  first  place,  to  inquire  who 
may  avail  himself,  as  a  riparian  proprietor,  of  the  right  to 
obstruct  the  flow  of  the  waters  of  a  stream  by  a  dam  across 
the  same,  under  the  character  of  a  mill-owner.  Although 
a  "  mill  site,"  or  "  sQi^t,"  or  "  privilege,"  —  for  all  these 
terms  arc  in  use, —  may  not  require  any  definite  amount  or 
capacity  of  power  to  entitle  the  owner  thereof  to  exercise  the 
right  of  penning  back  the  waters  of  a  stream,  it  does  imply 
the  capacity  of  thereby  creating  sufficient  power  by  the  fall 
of  the  water,  within  the  owner's  premises,  to  be  susceptible 
of  being  applied  to  some  useful  purpose  of  art.  One 
*privilege  may  be  adequate  to  carry  a  single  mill,  [*24o] 
another  may  put  in  motion  the  spindles  of  a  whole 
village. 

3.  There  have  been  various  definitions  of  a  mill  site,  seat, 
or  privileg-e,  which  it  may  be  well  to  refer  to  in  this  connec- 
tion. 

Thus,  in  Russell  v.  Scott,  the  court  say  that  a  "  mill-seat," 
or  a  "  watercourse  suitable  for  the  erection  of  mills,"  which 
is  "  but  another  expression  for  mill  seat  or  seats,"  implies 
land  upon  which  a  mill  may  be  erected,  for  "  it  is  an  ab- 
surdity in  terms  to  say  that  a  stream  is  suitable  for  the  erec- 
tion of  mills  upon  which  no  mill  can  be  erected."  ^ 

In  M'Calmont  v.  Whitaker,  Gibson,  C.  J.  says  :  "  The 
water-power  to  which  a  riparian  owner  is  entitled  consists  of 
the  fall  in  the  stream  when  in  its  natural  state,  as  it  passes 
through  his  land,  or  along  the  boundaries  of  it.  Or,  in  other 
words,  it  consists  of  the  difference  of  level  between  the  sur- 
face where  the  stream  first  touches  his  land  and  the  surface 
where  it  leaves  it."  ^ 


429  ;  Gould  v.  Boston  Duck  Co.,  13  Gray,  442  ;  Gary  v.  Daniels,  8  Mete.  466  ; 
480;  Brace  v.  Yale,  10  Allen,  441  ;  Brown  v.  Bush,  45  Penn.  66. 

1  Russell  V.  Scott,  9  Cow.  281  ;  Crosby  v.  Bradbury,  20  Me.  61.  See  Stack- 
pole  V.  Curtis,  32  Me.  383 ;  Jackson  v.  Vermilyea,  6  Cow.  677  ;  Moore  v. 
Fletcher,  16  Me.  63. 

2  M'Calmont  v.  Whitaker,  3  Rawle,  84,  90.     Brown  v.  Bush,  45  Penn.  66. 


312       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

This  definition  is  adopted  in  terms  by  the  court  of  Illinois, 
in  Plumleigh  v.  Dawson.^ 

And  Huston,  J.,  in  the  above  cited  case,  in  applying  the 
rule  in  question,  says  :  "  To  the  lower  line  of  M'Calmont,  he 

(Whitaker)  could  dam  back  the  watof,  and  no  further 

The  rule  must  be,  that  a  man  has  a  right  to  dam  back  the 
water  to  his  own  upper  line,  as  the  water  was,  and  as  the 
bottom  of  the  creek  was,  in  a  state  of  nature,  when  he  built 
his  dam." 

Questions  often  arise  as  to  the  mode  of  measuring  and  as- 
certaining these,  especially  where  one  dam  has  been  substi- 
tuted for  another,  and  the  comparative  extent  of  the  flowing 
by  one  or  the  other  is  sought  to  be  measured  and  ascertained. 
In  one  case,  it  was  attempted  to  measure  the  natural  fall  in 
a  stream  by  a  process  of  instrumental  levelling.  But  the 
court  held  that  this  was  less  satisfactory  than,  and  must  yield 
to,  "  actual  visible  facts,"  such  as  a  fixed  object  in  the  stream, 
before  the  dam  in  question  was  erected,  being  out  of  water 
but  covered  afterwards,  the  rise  and  fall  of  the  water  on  the 
posts  and  abutments  of  a  bridge  above,  or  drowning  out  a  per- 
manent object  upon  the  bank  of  the  stream,  because  instru- 
mental measurements  are  liable  to  accidents  and  mistakes. 
The  court  instructed  the  jury  that  "  water  will  find  its  level 
with  more  certainty  than  science  can  do  the  same  work. 
The  instrumental  levelling  does  show  that  the  plaintiff  has 
more  fall  upon  his  land  than  he  has  elevation  at  his  dam  ; 
but  if  that  does  not  tell  the  height  of  the  water  set  back  as 
clearly  as  shown  by  the  water  itself,  then  the  fact  demon- 
strated upon  the  ground  must  govern.  We  do  not  under- 
value scientific  measurements,  but  the  history  of  all  engineer- 
ing in  Pennsylvania  has  shown  that,  wherever  science  has 
disregarded  and  set  aside  the  testimony  of  local  experience 
and  observation,  it  has  blundered,  and  has  had  to  do  its  work 
over  again."  "  And  then  nature  has  her  own  secrets  which 
she  has  not  revealed  even  to  science.     Who  can  calculate  for 

1  Plumleigh  v.  Diuvson,  1  Gilm.  544. 


Sect.  3.]  USE    OF   WATER   FOR   MILLS.  313 

what  the  watermen  call  '  piling '  of  water,  or  for  the  effect  of 
removing  a  given  obstruction  a  few  rods  further  down  stream, 
whereby  the  velocity  of  the  current  at  a  particular  point  is 
changed,  or  for  atmospheric  resistance  to  water  ?  "  ^ 

In  A^an  Iloesen  v.  Coventry,^  Harris,  J.  says  :  "  The  gen- 
eral doctrine  relating  to  watercourses  is,  that  every  proprie- 
tor is  entitled  to  the  use  of  the  flow  of  the  water  in 
its  *natural  course,  and  to  the  momentum  of  its  fall  [*246] 
on  his  own  land."  While  in  Davis  v.  Fuller^  the 
Judge  (Collamer)  limits  it  by  saying :  '•'  No  man  can  be 
said  to  liavc  a  mill-privilege  which  cannot  be  used  without 
injury  to  others." 

Chancellor  Bland,  in  Binney's  case,*  undertakes  to  define  a 
"  natural  mill-site,"  by  means  of  a  diagram  in  the  form  of  a 
right-angled  triangle,  having  for  its  hypothenuse  the  line  of 
the  slope  or  descent  in  the  stream,  and  the  other  sides  formed 
by  a  horizontal  line  extending  from  the  highest  point  in  the 
stream  till  it  meets  a  perpendicular  erected  at  the  lowest 
point  in  the  slope  of  the  stream.  The  points  from  which  the 
horizontal  line  is  drawn,  and  from  which  the  perpendicular 
is  erected,  must  neither  of  them  transcend  the  limits  of  the 
owner's  land,  if  it  is  intended  thereby  to  define  the  extent 
to  which  a  property  in  the  mill-site  can  be  claimed.  The  mill- 
power,  as  here  represented,  is  assumed  to  be  created  by  con- 
ducting the  water  along  the  horizontal  line  to  the  point  of  its 
intersection  with  the  perpendicular,  and  causing  it  to  propel 
machinery  by  falling  therefrom  to  the  lowest  point  in  the 
stream,  the  horizontal  line  representing  the  "  head-race,"  the 
perpendicular  one  the  "  tail-race,"  which  would,  of  course, 
be  equal  to  the  fall  from  the  upper  to  the  lower  points  in  the 
stream.^    It  is  immaterial  what  may  be  the  length  of  the  head- 

1  Brown  v.  Bush,  45  Penn.  61. 

2  Van  Hoesen  v.  Coventry,  10  Barb.  518,  520. 
8  Davis  V.  Fuller,  12  Vt.  1.78. 

*  Binney's  case,  2  Bland,  Ch.  99,  114. 

6  "  Head  and  Fall,"  as  applied  to  an  occupied  mill-privilege,  is  "  the  dis- 
tance of  the  surface  of  the  water  above  the  dam  to  the  bottom  of  the  race-way. 


314  THE  LAW   OF  EASEMENTS   AND   SERVITUDES.         [Ch.  IIL 

race,  or  what  that  of  the  tail-race  may  be,  provided  it  is  high 
enough  to  have  the  momentum  of  fall  sufficient  to  propel  the 
machinery  of  the  mill.  A  mill-site,  as  thus  described,  is  in 
its  nature  an  entire  thing,  incapable  of  division. 

In  Crittenden  v.  Field,  the  grant  of  a  mill-privilege  was 

described  as  commencing  at  a  certain  rock  and  running  to  a 

certain  dam,  and  was  held  to  be  a  right  to  flow  to  the 

[*247]   rock,  *and  limited  the  privilege  from  the  dam  below 

to  the  rock  above,  but  not  to  flow  above  the  rock.^ 

But  by  "  mill-privilege "  it  would  seem  that  something 
more  was  meant  than  the  quantum  of  power  applicable  to 
driving  machinery,  or  the  limits  and  bounds  within  which 
this  is  to  be  applied.  It  embraces,  also,  the  right  which  the 
law  gives  the  owner,  to  erect  a  mill  thereon,  and  to  hold  up 
or  let  out  the  water  at  the  will  of  the  occupant,  for  the  pur- 
pose of  operating  the  same  in  a  reasonable  and  beneficial 
manner.^ 

In  Bardwell  v.  Ames,  Shaw,  C.  J.,  speaking  of  what  had 
been  granted  in  that  case,  says :  "  We  think  it  was  the  whole 
of  the  water-power  and  mill-privilege  created  and  established 
by  the  artificial  works  then  created  for  the  purpose  of  appro- 
priating and  applying  the  current  of  the  stream  for  mill  pur- 
poses, consisting  of  the  wing  dam,  the  side  dam,  the  guard 
gates,  the  pond,  reservoir,  or  general  passage  above  the  mills, 
and  the  stone  flume  "  ;  showing  how  broad  a  signification 
may  be  given  to  the  term  loater-power  and  mill-privilege ^ 
when  used  as  terms  of  description  in  a  grant.^ 

4.  In  whatever  terms  a  mill  site  or  privilege  may  be  de- 
scribed, it  is  obvious  that  two  or  more  of  these  cannot  be  oc- 
cupied upon  the  same  stream,  within  any  reasonable  distance 
from  each  other,  without  the  operation  of  the  one  in  some 

where  the  water  strikes  after  it  has  passed  the  wheels  on  which  it  operates." 
Per  Shaw,  C.  J.,  in  Bardwell  v.  Ames,  22  Pick.  333,  362. 

1  Crittenden  v.  Field,  8  Gray,  621. 

2  Gould  V.  Boston  Duck  Co.,  13  Gray,  442,  453 ;  Pettee  v.  Hawes,  13  Pick.  326; 
Brace  v.  Yale,  10  Allen,  447. 

3  Bardwell  v.  Ames,  22  Pick.  333,  355, 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  815 

measure  injuriously  affecting  that  of  the  other.  And  it  often 
becomes  a  question  of  difficulty  to  determine  whether  such 
injury  is  the  foundation  or  not  for  an  action  at  law.  The 
mills  may  be  of  unequal  magnitude  and  capacity,  the  one 
may  require  a  less  volume  of  water  to  propel  it  than  the 
other,  or  one  may  require  the  water  of  the  stream  to  be  re- 
tained till  accumulated  in  sufficient  quantity  to  carry  the 
works  in  the  same,  and  the  other  be  thereby  delayed  while 
it  is  so  accumulating,  and,  being  incapacitated  to  use 
it  all  *as  it  shall  then  be  discharged  by  the  vipper  mill,  [*248] 
the  lower  one  will  lose  the  benefit  of  the  natural  flow 
of  the  stream.  And  even  if  no  such  inequality  in  the  works 
exist,  there  must  necessarily  be  a  delay  and  obstruction,  by 
the  upper  mill,  of  the  water  flowing  to  supply  the  lower  one. 
And,  on  the  other  hand,  the  head  raised  to  work  the  lower  one 
may  set  back  so  as  to  check  or  diminish  the  rapidity  with  which 
the  water  is  discharged  from  the  tail-race  of  the  upper  one. 

Questions  of  this  kind  have  been  numerous,  and,  though 
it  is  not  intended  to  examine  them  in  detail,  it  is  desirable 
to  collect  enough  of  them  to  draw  some  general  rules  which 
may  be  of  practical  application  in  like  or  analogous  cases. 

5.  The  reader  whose  attention  has  not  already  been  called 
to  the  fact,  will  be  surprised  to  find  how  recent,  in  point  of 
time,  have  been  the  cases  which  are  now  regarded  as  the 
leading  ones  upon  this  subject,  in  England  as  well  as  in  this 
country.  Few  cases,  for  instance,  have  been  more  frequently 
cited  than  that  of  Bealey  v.  Shaw,  which  has  become  a  lead- 
ing authority,  and  was  decided  in  1805,  and  is  cited  here, 
somewhat  at  length,  in  order  to  trace  the  course  of  the  deci- 
sions of  the  several  questions  which  were  raised  in  its  discus- 
sion. In  that  case  the  mill  of  the  defendant,  which  was  an 
ancient  one,  was  operated  by  means  of  a  dam  and  a  sluice, 
which  conducted  the  water  from  the  stream,  and  after  having 
been  used  at  his  mill,  the  same  was  discharged  into  the 
stream  below  the  site  of  the  plaintiff's  mill.  The  plaintiff's 
mill  had  been  in  operation  but  eight  years,  and  was  worked 


316  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.        [Cir.  III. 

by  the  water  of  the  stream  which  was  not  turned  into  the 
sluice  of  the  defendant's  mill,  when  the  defendant  built  a 
new  dam,  enlarged  his  sluice  and  the  work  at  his  mill,  and 
took  the  whole  water  of  the  stream,  thereby  depriving  the 
plaintiff  of  all  means  of  operating  his  mill.  And  for  this 
diversion  the  action  was  brought.  It  was  contended  that  the 
defendant,  by  having  appropriated  the  stream  to  the  purposes 

of  a  mill,  might,  as  against  a  recent  mill,  apply  as 
[*249]   much  water  as  he  had  occasion  to   use   *without 

being  responsible  for  so  doing.  But  this  position 
was  overruled  by  the  court.  They  held  that  twenty  years' 
exclusive  enjoyment  of  the  water  in  any  particular  manner 
affords  conclusive  presumption  of  right  in  the  party  so 
enjoying  it,  derived  from  grant  or  act  of  Parliament ;  in 
which,  however,  as  will  be  seen  hereafter,  the  language  of 
the  court  should  have  been  considerably  qualified.  But  that, 
if  this  principle  were  applied,  it  would  not  extend  to  any 
more  water  than  had  been  used  at  the  defendant's  works  at 
the  time  of  the  erection  of  the  plaintiff's  mill.  And  Grose, 
J.  said  :  "  The  plaintiff  had  a  right  to  all  the  water  coming 
over  that  weir  (dam)  which  had  not  been  carried  off  by 
such  sluice."  And  the  rule  stated  by  Le  Blanc,  J.,  in 
which  he  substantially  agreed  with  Lawrence,  J.,  is  :  "  That 
after  the  erection  of  works,  and  the  appropriation  by  the 
owner  of  the  land  of  a  certain  quantity  of  the  water  flowing 
over  it,  if  a  proprietor  of  other  land  afterwards  takes  what 
remains  of  the  water  before  unappropriated,  the  first-men- 
tioned owner,  however  he  might,  before  such  second  appro- 
priation have  taken  to  himself  so  much  more,  cannot  do  so 
afterwards."  ^ 

6.  One  of  the  principal  points  in  this  case,  as  it  will  be 
perceived,  was  how  far  a  prior  occupation  of  a  mill-site 
gives  the  owner  and  occupant  thereof  an  exclusive  right  to 
the  control  of  the  waters  of  the  stream,  and  how  far  this 

1  Bealey  v.  Shaw,  6  East,  208.     See  also  0ary  v.  Daniels,  8  Mctc.  466,  477 
Baldwin  v.  Caskins,  10  Wend.  1G7  ;  Canham  v.  Fisk,  2  Crompt.  &  J.  126. 


Sect.  3.]  USE   OF  WATER   FOR   MILLS.  317 

depends  upon  the  mill,  by  which  such  occupation  is  had, 
being  an  ancient  one.  Much  discussion  has  been  had  upon 
the  subject,  nor  have  the  decisions  in  all  cases  been  the 
same. 

In  Piatt  V.  Root,^  the  first  occupant  of  a  mill-privilege 
claimed  that  he  had,  thereby,  acquired  a  right  to  the  stream 
above  and  below  so  far  that  no  second  occupant 
could  use  *or  detain  the  water  thereof  to  the  least  [*250] 
injury  of  his  mill.  But  this  claim,  it  will  be  per- 
ceived, is  not  like  that  in  Bcaley  v.  Shaw,  of  having  appro- 
priated the  whole  waters  of  the  stream  by  the  erection  of  a 
mill ;  but  that,  to  the  extent  to  which  it  had  actually  been 
appropriated,  no  one  had  a  right  to  interfere  with  the  undis- 
turbed enjoyment  thereof.  But  such  a  right,  as  incident  to 
a  prior  occupancy,  was  denied  by  the  court.  They  adopt  the 
language  of  Thompson,  J.,  in  Palmer  v.  Mulligan, ^  that 
"  the  elements  being  for  general  and  public  use,  and  the 
benefit  of  them  appropriated  to  individuals  by  occupancy, 
this  occupancy  must  be  regulated  and  guarded  with  a  view 
to  the  individual  right  of  all  who  have  an  interest  in  their 
enjoyment,  and  the  maxim,  Sic  utere  tuo  ut  alienum  non 
l(sdas,  must  be  taken  and  construed  with  an  eye  to  the 
natural  rights  of  all.  Although  some  conflict  may  be  pro- 
duced in  the  use  and  enjoyments  of  such  rights,  it  cannot 
be  considered,  in  judgment  of  law,  an  infringement  of  the 
right.  If  it  become  less  useful  to  one  in  consequence  of  the 
enjoyment  by  another,  it  is  by  accident,  and  because  it  is 

dependent  on  the  exercise  of  the  equal  rights  of  others 

The  erection  of  dams  on  all  rivers  is  injurious,  in  some 
degree,  to  those  who  have  mills  on  the  same  stream  below, 
in  withholding  water.     Yet  this  had  never  been  supposed  to 

afford  a  ground  of  action Each  one  had  an  equal 

right  to  build  his  mill,  and  the  enjoyment  of  it  ought  not 

1  Piatt  V.  Root,  15  Johns.  213.     See  Panton  v.  Holland,  17  Johns.  92. 

2  Palmer  v.  Mulligan,  3  Caines,  307.      See  Davis  v.  Winslow,  51  Maine, 
290. 


318  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.        [Ch.  III. 

to  be  restrained  because  of  some  trifling  inconvenience  to 
the  other."  And  they  mention  among  these,  '^  insensible 
evaporation,  and  decrease  of  the  water  by  dams,  and  the 
occasional  increase  or  decrease  of  the  velocity  of  the  cur- 
rent, and  the  quantum  below."  And  the  language  of 
Livingston,  J.,  in  the  case  of  Palmer  v.  Mulligan,  is:  "It 
becomes  impossible  to  attempt  to  define  any  case  which  may 
occur  of  this  kind.  Each  must  depend  on  its  own  circum- 
stances." 
[*251]  *It  may  be  stated,  as  an  unqualified  proposition, 
that  no  priority  of  occupation  or  use  of  water  by  a 
mill-owner  upon  a  stream  within  the  limits  of  his  own  estate 
affects  the  right  of  a  riparian  proprietor  above  to  erect  and 
operate  a  mill,  in  a  suitable  and  reasonable  manner,  upon 
his  own  land.i 

This  remark  applies  to  cases  where,  like  that  of  Gould  v. 
Boston  Duck  Company,  there  had  been  no  prescriptive  rights 
acquired.  But  a  mill  may  so  use  the  water  of  a  stream  as 
to  give  it  prescriptive  rights  against  other  riparian  owners, 
as  where  the  lower  of  two  mills  had  exercised  the  exclusive 
right  to  control  the  water  retained  by  a  reservoir  dam  above 
the  upper  mill,  it  acquired  a  prescriptive  right  to  do  so,  as 
against  the  upper  mill,  as  was  the  case  in  Brace  v.  Yale.^ 

7.  But  the  rules  applicable  to  the  question,  what  is  a  suit- 
able and  reasonable  manner  of  erecting  and  operating  one 
mill  in  reference  to  the  rights  acquired  by  priority  of  occu- 
pation by  an  existing  one,  can  best  be  limited  and  illustrated 
by  particular  cases.  That  of  Tyler  v.  Wilkinson^  has  been 
recognized  as  a  leading  one  both  in  England  and  this  coun- 
try. Speaking  of  the  rights  of  a  lower  mill-owner  upon  a 
stream,  Story,  J.  says  :  "  As  owners  of  the  lower  dam,  and 
the  mills  therewith  connected,  they  have  no  rights  beyond 

1  Thurher  v.  Martin,  2  Gray,  394  ;  Martin  v.  Bigelow,  2  Aik.  184  ;  Gould  v. 
Boston  Duck  Co.,  13  Gray,  442,  453.  But  see  Wood  v.  Waud,  3  Exch.  748, 
773. 

2  10  Allen,  441. 

8  Tyler  v.  Wilkinson,  4  Mason,  397,  403. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  819 

those  of  any  other  persons  who  miglit  have  appropriated  that 
portion  of  the  stream  to  the  use  of  their  mills.  That  is, 
their  rights  are  to  be  measured  by  the  extent  of  their  actual 
appropriation  and  use  of  the  water,  for  a  period  which  the 
law  deems  a  conclusive  presumption  in  favor  of  rights  of 

this  nature They  are  riparian  proprietors,  and  as 

such  are  entitled  to  the  natural  flow  of  the  river  without 
diminution  to  their  injury In  their  character  as  mill- 
owners,  they  have  no  title  to  the  flow  of  the  stream  beyond 
the  water  actually  and  legally  appropriated  to  the  mills. 
But  in  their  character  as  riparian  proprietors,  they  have, 
annexed  to  the  lands,  the  general  flow  of  the  river,  so  far  as 
it  has  not  been  already  acquired  by  some  prior  or  legally 
operative  appropriation." 

As  a  general  proposition,  every  riparian  proprietor  has  a 
natural  and  equal  right  to  the  use  of  the  water  in  the  stream 
adjacent  to  his  land,  without  diminution  or  alteration.  The 
right  to  use  implies  a  right  to  exercise  a  degree  of  control 
over  it,  and  even,  to  some  extent,  to  diminish  its  quantity. 
He  may  apply  it  to  the  purposes  of  manufacture  or  the  arts, 
but  may  not,  in  so  doing,  corrupt  it.  He  may  use  it  for 
hydraulic  purposes,  but  may  not  unreasonably  retard  its 
natural  flow,  nor  injuriously  accelerate  its  motion,  by  dis- 
charging it  from  his  works  in  an  unreasonable  manner,  nor 
suddenly,  nor  in  excessive  quantities,  nor  divert  it  from  its 
accustomed  channel  without  returning  it  to  the  same  before 
it  passes  from  his  own  premises  to  those  of  another.  But 
he  could  not  be  held  responsible  for  any  injurious  conse- 
quences which  might  result  to  others,  if  he  use  the  water  in 
a  reasonable  manner,  and  the  quantity  used  is  limited  by 
and  does  not  exceed  what  is  reasonably  and  necessarily 
required  for  the  operation  and  propulsion  of  works  of  such 
character  and  magnitude  as  are  adapted  and  appropriated  to 
the  size  and  capacity  of  the  stream  and  the  quantity  of  water 
flowing  therein.^ 

1  Davis  V.  Getchell,  50  Maine,  604  ;  Springfield  v.  Harris,  4  Allen,  494.  See 
Corning  v.  Troy,  &c.  Iron  Co.,  39  Barb.  311. 


320  THE  LAW   OF  EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

8.  In  Hatch  v.  Dwight  ^  the  court  state  the  law  to  be  : 
"  The  owner  of  a  mill-site,  who  first  occupies  it  by 
[*252]  erecting  *a  dam  and  mill,  will  have  a  right  to  water 
sufficient  to  work  his  wheels,  if  his  privilege  will 
afford  it,  notwithstanding  he  may,  by  his  occupation,  render 
useless  the  privilege  of  any  one  above  or  below  him  upon 
the  same  stream  ;  so  if  a  site  once  occupied  had  been  aban- 
doned by  the  owner." 

This  broad  doctrine,  of  the  effect  of  a  mere  priority  of 
occupation,  has  been  somewhat  criticised  by  other  courts, 
and  among  them  by  that  of  Maine,  in  Butman  v.  Hussey,^ 
where,  while  it  is  affirmed  that  a  riparian  proprietor  has  a 
right  to  avail  himself  of  the  momentum  of  the  water,  and 
may  for  this  purpose  raise  a  head  of  water  on  his  own  land, 
if  he  do  not  thereby  impair  the  rights  of  other  proprietors, 
it  is  questioned  whether  the  owner  of  a  mill-privilege,  which 
had  never  been  occupied,  could  have  an  action  for  an  injury 
to  the  same  by  the  erection  of  a  dam  below  ;  and  the  judge, 
Weston,  after  comparing  the  doctrine  of  Hatch  v.  Dwight 
with  that  of  Tyler  v.  Wilkinson,  as  to  the  effect  of  priority 
of  occupation,  concludes  that  the  weight  of  authority  is  with 
the  latter,  and  that  an  exclusive  right  to  a  mill-privilege  is 
not  sustained  by  occupancy  alone,  for  a  period  less  than 
twenty  years. 

Whether  or  not  the  doctrine  of  Hatch  v.  Dwight  may 
have  been  somewhat  affected  in  the  extent  to  which  it  was 
applied  by  the  peculiar  laws  of  Massachusetts  upon  the 
subject  of  mills,  which  will  hereafter  be  explained,  the  sub- 
ject was  deliberately  examined  by  the  court  in  Thurber  v. 
Martin,'^  wherein  it  was  held  that  priority  of  occupation 
secures  to  the  first  occupant  the  exclusive  right  to  the  use  of 
the  water  to  the  extent  of  his  occupation.  But  priority  of 
use  at  any  particular  point  upon  a  stream,  however  long 

1  Hatch  V.  Dwight,  17  Mass.  289,  296. 

2  Butman  v.  Ilusscy,  12  Mc.  407.     Sec  also  King  v.  Tiffany,  9  Conn.  162, 
168  ;  Omelvany  v.  Jaggers,  2  Hill,  So.  C.  634. 

3  Thurber  v.  Martin,  2  Gray,  394. 


Sect.  3.]  USE    OF   WATER   FOR   MILLS.  321 

continued,  can  never  deprive  the  owner  of  the  lands  bounded 
on  the  same  stream,  at  any  point  above  the  mill-pond 
of  *the  first  occupant,  of  the  right  to  have  and  enjoy  [*253] 
a  similar  use  of  the  water  as  it  passes  by  his  land. 
In  that  case,  the  lower  mill  had  been  in  operation  sixty  years, 
yet  the  upper  riparian  proprietor  was  held  to  have  a  right  to 
erect  and  operate  a  mill  upon  his  own  land.  But  in  doing 
so  he  must  use  the  water  in  i-  reasonable  and  proper  manner, 
in  propelling  and  operating  a  mill,  suited  and  adapted  in  its 
magnitude  to  the  size  and  capacity  of  the  stream,  and  the 
quantity  of  water  flowing  therein.  Nor  could  he  detain  the 
water  an  unreasonable  length  of  time,  nor  discharge  it  in 
such  excessive  quantity  that  it  would  run  to  waste.  He 
must  use  the  water  in  such  a  way  and  manner,  that  every 
riparian  proprietor,  at  points  further  down  the  stream,  will 
have  the  use  and  enjoyment  of  it,  substantially,  according  to 
its  natural  flow,  subject,  however,  to  such  disturbance  and 
interruption  as  are  necessary  and  unavoidable  in  and  by 
the  reasonable  and  proper  use  of  it,  for  the  operating  of  a 
mill  of  Suitable  magnitude,  adapted  and  appropriate  to  the 
size  and  capacity  of  the  stream,  and  quantity  of  water  flow- 
ing therein.  And  if  any  proprietor  on  the  stream  claims 
any  special  right  to  the  use  of  the  water,  more  beneficial  to 
himself  or  burdensome  to  the  riparian  proprietors  below 
than  what  may  be  called  the  natural  or  general  right  to  the 
reasonable  use  of  the  stream,  he  must  establish  it  by  grant 
or  prescription.  The  doctrines  of  this  case  were  reaffirmed 
in  that  of  Chandler  v.  Howland,^  and  may  be  considered  as 
the  well-settled  common  law  of  Massachusetts,  although,  as 
already  stated,  this  has  been  essentially  modified  in  some 
respects  by  the  statutes  of  that  State. 

The  question  as  to  the  extent  and  effect  of  appropriating 
the  waters  of  a  stream  for  mill  or  other  purposes  has  been 
discussed   in   California,   where   by   statute   those  working 

1  Chandler  v.  HowLand,  7  Gray,  348.     See  also  Cary  v.  Daniels,  8  Mete.  478 ; 
Smith  V.  Agawam  Canal  Co.,  2  Allen,  355. 
21 


322  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cn.  III. 

mines  are  authorized  to  divert  and  use  the  water  of 
[*254]   streams  *for  the  purpose  of  carrying  on  their  mining 

operations.  In  Ortraan  v.  Dixon,^  the  defendant  had 
a  saw-mill  upon  a  watercourse.  The  plaintiff  had  a  ditch  by 
which  he  took  the  water  of  the  stream  to  his  mine-works  from 
above  the  defendant's  mill,  when  the  defendant  was  not  using 
it  for  his  mill.  After  this  the  plaintiff  constructed  a  second 
ditch  above  the  former  one,  whereby  the  chief  part  of  the 
water  of  the  stream  was  diverted  from  defendant's  mill.  The 
court,  in  passing  upon  the  two  rights,  concede  the  prior  right 
of  water  to  the  mill,  and,  in  determining  how  much  the  ditch- 
owner  might  divert,  say :  "  The  measure  of  the  right  as  to 
extent  follows  the  nature  of  the  appropriation,  or  the  uses 
for  which  it  is  taken.     The  intent  to  take  and  appropriate, 

and  the  outward  act,  go  together If,  for  instance,  a 

man  takes  up  water  to  irrigate  his  meadow  at  certain  sea- 
sons, the  act  of  appropriation,  the  means  used  to  carry  out 
the  purpose,  and  the  use  made  of  the  water,  would  qualify 
his  right  of  appropriation  to  a  taking  for  a  specific  purpose, 
and  limit  the  quantity  to  that  purpose,  or  to  so  much  as  is 
necessary  for  it.  So  if  A  erects  a  mill  on  a  running  stream, 
this  shows  an  appropriation  of  the  water  for  the  mill  ;  but  if 
he  suffer  a  portion  of  the  water,  or  the  body  of  it,  after 
running  the  mill,  to  go  on  down  its  accustomed  course,  we 
do  not  see  why  persons  below  may  not  as  well  appropriate 
this  residuum  as  he  could  appropriate  the  first  use.  The 
truth  is,  ho  only  appropriates  so  much  as  he  needs  for  the 

given  purpose He  [the  defendant]  was  entitled  to  all, 

whenever  all  was  necessary  for  the  mill ;  but  whenever  the 
mill  did  not  need  or  could  not  use  it  for  its  operations, 
the  defendant  [plaintiff?]  could  use  it  for  his  purposes. 
.  ...  It  is  enough  to  hold  that  this  appropriation,  accord- 
ing to  the  finding  of  facts,  was  not  an  appropriation  of  all 
this  water  as  the  property  of  the  defendant,  but  only  an  ap- 
propriation of  so  much  as  was  necessary  for  the  mill,  and 

1  Ortman  v.  Dixon,  13  Cal.  33. 


Sect.  3.]  USE    OF    WATER   FOR   MILLS.  823 

that  *tliG  defendant,  after  the  claim  to  this  residuum   [*255] 
had  attached  hy  the  plaintiff's  appropriation,  could 
not  enlarge  his  right  at  the  expense  of  the  plaintiff's  rights 
already  vested."  " 

The  doctrine  of  the  case  is  believed  to  be  in  harmony  with 
that  already  enunciated  by  the  prior  cases  above  cited.  But 
it  has  been  stated  more  at  large  perhaps  than  otherwise  ne- 
cessary, because  of  the  peculiarity  of  the  local  laws  of  that 
State,  whereby  the  common  law,  as  to  the  rights  of  riparian 
proprietors  to  the  natural  flow  of  the  stream  through  their 
lands,  is  essentially  modified  in  favor  of  those  carrying  on 
mining  operations. 

Another  case  illustrative  of  the  application  of  the  law  of 
California,  was  this.  The  plaintiff  erected  a  dam  on  a 
stream,  by  which  he  turned  the  water  from  its  original  bed, 
for  a  considerable  distance,  for  the  purpose  of  working  the 
bed  of  the  stream  for  minerals,  between  the  points  where  the 
stream  was  diverted,  and  where  it  again  entered  the  original 
bed.  While  things  were  in  this  state,  the  defendant  went 
several  miles  above  the  point  of  this  diversion,  and,  by  a 
ditch,  turned  the  water  of  the  stream,  and  applied  it  at 
works  for  mining  purposes.  After  that,  the  plaintiff  being 
desirous  of  applying  the  water  of  the  stream  for  mining  pur- 
poses and  for  irrigation,  at  a  point  considerably  lower  down 
than  that  at  which  the  water  had  been  returned  by  the  plain- 
tiff into  the  original  stream,  brought  an  action  against  the 
defendant  on  the  ground  that  he  had  made  a  prior  appro- 
priation of  it.  But  it  was  held  that  he  had  no  right  to  the 
water,  as  against  the  defendant,  by  reason  of  his  appropria- 
tion first  made  by  his  dam,  since  that  was  done  merely  to 
divert  the  water  from  the  bed  of  the  stream  so  as  to  work  the 
bed  altogether  above  the  point  where  he  now  proposed  to 
use  it.i 

9.  A  leading  case  from  the  English  reports,  involving 
some  of  the  questions  above  suggested,  is  that  of  Mason  v. 

1  M'Kinny  v.  Smith,  21  Cal.  374. 


324      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

Hill,^  decided  in  tlic  King's  Bench  in  1833.  The  defend- 
ant's mill,  in  that  case,  was  erected  in  1818,  that  of  the 
plaintiff  in  1823.  The  owner  of  the  land  on  which  the  latter 
mill  was  erected  had  applied  the  waters  of  the  stream  for 
more  than  twenty  years  before  1818  for  watering  his  cattle 
and  irrigating  this  land.  In  1818  the  defendant  diverted 
from  the  stream  a  part  of  the  water  of  a  spring  which  had 
previously  flowed  into  it.  And  when,  in  1823,  the  plaintiff 
erected  his  mill,  he  applied  to  the  same  the  water  of  the 
stream  that  flowed  over  the  defendant's  dam,  and  that  part 
of  the  water  of  the  spring  which  the  defendant  had  not  di- 
verted, and  also  that  of  another  spring  that  flowed  into  and 
fed  the  stream.  Soon  after  this  the  defendant  changed  the 
site  of  his  dam  so  as  to  divert,  at  all  times,  the  water  from  the 
plaintiff's  mill.  The  court  considered  the  question  of  prior 
occupancy,  and  say  :  "  The  position  that  the  first  occupant  of 
running  water  for  a  beneficial  purpose  has  a  good  title  to  it, 
is  perfectly  true  in  this  sense,  that  neither  the  owner  of  the 
land  below  can  pen  back  the  water  Jior  the  owner  of  the  land 

above   divert   it  to   his   prejudice And   the 

[*256]   owner  of  the  land  that  applies  *the  stream  that  runs 

through  it  to  the  use  of  a  mill  newly  erected,  or 
other  purposes,  if  the  stream  is  diverted  or  obstructed,  may 

recover  for  the  consequential  injury  to  the  mill But 

it  is  a  very  different  question  whether  he  can  take  away  from 
the  owner  of  the  land  below  one  of  its  natural  advantages, 
which  is  capable  of  being  applied  to  profitable  purposes,  and 
generally  increases  the  fertility  of  the  soil,  even  when  unap- 
plied, and  deprive  him  of  it  altogether  by  anticipating  him 

in  its  application  to  a  useful  purpose It  appears  to 

us  that  there  is  no  authority  in  our  law,  nor,  so  far  as  we 
know,  in  the  Roman  law,  that  the  first  occupant,  though  he 
may  be  the  proprietor  of  the  land  above,  has  any  right,  by 
diverting  the  stream,  to  deprive  the  owner  of  the  land  below 
of  the  special  benefit  and  advantage  of  the  natural  flow  of  the 

1  Mason  v.  Hill,  5  Barnew.  &  Ad.  1. 


Sect.  3.]  USE    OF    WATER   FOR   MILLS.  325 

water  therein,"  unless  the  same  has  been  gained  by  prescrip- 
tion or  grant. 

Tiic  court,  accordingly,  held  the  defendant  liable  for  con- 
tinuing to  divert  the  water  of  the  spring,  although  he  had 
begun  to  do  so  before  the  plaintiff  had  erected  his  mill,  and 
they  applied  the  same  rule  to  the  stream  generally. 

10.  Regarded  in  its  reference  to  a  diversion  of  water,  the 
law  of  the  case  of  Mason  v.  Hill  would  probably  be  adopted 
as  the  law  of  this  country,  as  it  is  in  England.  But  the 
rules  which  are  to  govern,  in  the  mode  of  exercising  their 
respective  rights  to  the  use  of  water  by  the  several  proprie- 
tors upon  the  same  stream,  are  yet  to  be  considered.  Before 
doing  this,  however,  reference  may  be  had  to  another  some- 
what leading  case,  in  which  the  rights  growing  out  of  prior 
occupancy  of  water  are  treated  of.  Ruffin,  C.  J.,  in  Pugh  v. 
Wheeler,^  uses  this  language :  "  The  defendants  say,  that 
such  one  of  the  owners  as  may  first  apply  water  to  any  par- 
ticular purpose,  gains  thereby  and  immediately  the 
exclusive  right  to  that  use  of  the  water.  That  *is  [*257] 
true,  in  the  sense  that  any  other  proprietor  above 
or  below  cannot  do  any  act  whereby  that  particular  enjoy- 
ment would  be  impaired,  without  answering  for  the  damages 
which  are  occasioned  by  the  loss  of  the  particular  enjoyment. 
Whereas,  before  the  particular  application  of  the  water  to 
that  purpose,  the  damages  would  not  have  included  that 
possible  application  of  the  water,  but  been  confined  to  the 
uses  then  subsisting.  But  to  render  the  proposition,  even 
thus  far  true,  the  use  supposed  must  be  a  legitimate  one, 
that  is,  it  must  not  interfere  with  any  previously  existing 
right  in  another  proprietor ;  for  usurpation  does  not  justify 
itself.  If  one  builds  a  mill  upon  a  stream,  and  the  person 
above  divert  the  water,  the  owner  of  the  mill  may  recover 
for  the  injury  to  the  mill,  although,  before  he  built,  he  could 

1  ru-h  V.  Wheeler,  2  Dev.  &  B  50,  55  ;  Gould  v.  Boston  Duck  Co.,  13  Gray, 
442,  450;  Kelly  v.  Natoma  Water  Co.,  6  Cal.  105 ;  Sin-eve  v.  Voorhees,  2  Green, 
Ch.  25. 


326      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

only  recover  for  the  natural  use  of  the  water  as  needed  for 
his  family  and  irrigation 

"  There  is,  therefore,  no  prior  or  posterior  in  the  use,  for 
the  land  of  each  enjoyed  it  alike  from  the  origin  of  the 
stream,  and  the  priority  of  a  particular  new  application  or 
artificial  use  of  the  water  does  not  therefore  create  the  right 
to  that  use,  but  the  existence  or  non-existence  of  that  appli- 
cation, at  a  particular  time,  measures  the  damages  incurred 
by  the  wrongful  act  of  another  in  derogation  of  the  general 
right  to  the  use  of  the  water  as  it  passes  to,  through,  or  from 
the  land  of  the  party  complaining.  The  right  is  not  founded 
in  user,  but  is  inherent  in  the  ownership  of  the  soil ;  and 
when  a  title  by  use  is  set  up  against  another  proprietor, 
there  must  be  an  enjoyment  for  such  length  of  time  as  will 
be  evidence  of  a  grant,  and  thus  constitute  a  title  under  the 
proprietor  of  the  land." 

The  court  also,  in  another  case  in  New  York,  Merritt  v. 
Brinkerhoffji  declared  the  law  to  be,  that  the  prior  occupancy 
of  a  mill-privilege  by  one  upon  a  stream  gave  him  no  exclu- 
sive right  to  the  undisturbed  use  of  the  water. 
[*258]  *It  will  be  unnecessary  to  dwell  any  longer  upon 
the  cases  in  which  the  doctrine  applicable  to  ques- 
tions of  precedence  of  right,  arising  from  priority  of  occupa- 
tion of  water-power,  is  discussed,  except  as  it  may  be  to 
illustrate  the  practical  operation  of  the  doctrine.  But  the 
reader,  by  referring  to  other  cases  cited  below,  will  find  it 
therein  more  or  less  prominently  sustained.^ 

11.  From  the  consideration  that,  so  far  as  a  property  in  a 

1  Merritt  v.  Brinkerhoflf,  17  Johns.  306. 

2  Heath  v.  Williams,  25  Me.  209,  216;  Ingraham  v.  Hutchinson,  2  Conn. 
584,  59\  ;  Sherwood  v.  Burr,  4  Day,  244  ;  Sumner  v.  Tileston,  7  Pick.  198, 
20.3 ;  Gould  v.  Boston  Duck  Co.,  13  Gray,  442,  453  ;  Cox  v.  Matthews,  1 
Ventr.  237  ;  Rutland  v.  Bowler,  Palm.  290  ;  Frankum  v.  Falmouth,  6  Carr.  & 
P.  529;  Buddington  v.  Bradley,  10  Conn.  213,  219;  Tucker  v.  Jewett,  11 
Conn.  311,  323;  Twiss  i;.  Baldwin,  9  Conn.  291,  306;  Blanchard  v.  Baker, 
8  Me.  253,  269  ;  Shreve  v.  Voorhecs,  2  Green,  Ch.  25  ;  Thomas  v.  Brack- 
ney,  17  Barb.  654 ;  Davis  v.  Fuller,  12  Vt.  178  ;  Hoy  v.  Sterrett,  2  Watts,  327  ; 
Hartzall  v.  Sill,  12  Penn.  St.  248. 


Sect  3.]  USE   OF   WATER   FOR   MILLS.  327 

mill  site  or  privilege  is  concerned,  it  is  limited  by  the 
extent  of  ownership  of  the  land  within  which  the  fall  of  tlic 
water  is  contained,  and  as  the  dividing  line  between  the 
upper  and  lower  riparian  proprietor  may  so  divide  the  fall 
in  the  stream  that  but  one  part  can  be  advantageously 
appropriated,  it  may  sometimes  happen  that  the  effect  of  a 
prior  appropriation  of  water-power  in  such  case  by  one  may 
interfere  with  another  riparian  proprietor  enjoying  what  he 
originally  had  an  equal  right  to  avail  himself  of.  And  this 
will  be  found  to  have  a  more  extensive  application  in  those 
States,  where,  by  statute,  one  may  go  beyond  the  limits  of 
his  own  land  in  appropriating  a  water-power  by  a  dam 
erected  wholly  or  in  part  upon  his  own  land,  and  thus  it 
may  seem  to  form  somewhat  of  an  exception  to  the  general 
rule,  as  the  same  has  been  stated  above.^ 

12.  Two  things  are  to  be  considered  in  ascertaining  the 
manner  and  extent  of  the  use  to  which  the  water  of  a 
stream  may  be  applied  in  operating  mills  thereon. 

One  *is  its  effect  upon  the  land  of  other  riparian  [*259] 
proprietors,  the  other  is  its  effect  upon  other  existing 
mills,  and  a  third  is  sometimes  presented  in  cases  where  a 
change  is   necessary,  or   has   been   made   in   the  mode   of 
operating,  or  in  the  character  of  the  mill. 

13.  It  seems  to  be  settled  that  a  mill-owner  has  a  right, 
by  means  of  his  dam,  to  swell  or  set  back  the  water  of  the 
stream,  in  its  natural  state,  to  the  line  of  the  adjoining  ripa- 
rian proprietor,  and  to  maintain  his  dam  at  that  height, 
although  at  times  of  freshets  the  water  of  his  pond  shall  set 
back  on  to  the  land  of  such  proprietor.  If  it  were  not  so, 
it  would  not  be  possible  to  apply  the  whole  power  of  a  mill- 
privilege  arising  from  the  descent  of  the  water  within  the 
land  of  the  mill-owner.^  But  by  freshets  is  meant,  not  the 
swells  of  water  in  the  stream  which  ordinarily  occur  periodi- 

1  M'Coy  V.  Danley,  20  Penn.   St.  85;  Burwell  v.   Hobson,  12  Gratt.  322; 
Hendrick  V.  Cook,  4  Ga.  241,  257,  265  ;  Cary  v.  Daniels,  8  Mete.  466,  477. 

2  Monongahela  Navigation  Co.  v.  Coon,  6  Penn.  St.  379,  383.     See  Domat, 
B.  1,  Tit.  12,  §  5,  Art.  4 ;  Smith  v.  Agawam  Canal  Co.,  2  Allen,  355. 


328  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.         [Ch.  III. 

cally  at  certain  seasons  of  the  year,  by  which  the  same  is 
raised  above  the  ordinary  state  of  the  stream  at  other  sea- 
sons, but  extraordinary  rises  in  the  stream ;  and  the  lan- 
guage of  the  court,  in  a  later  case  than  the  one  last  cited,  is : 
"  A  flood  is  a  different  thing.  When  it  does  come,  it  is  a  visi- 
tation of  Providence,  and  the  destruction  it  brings  with  it 
must  be  borne  by  those  on  whom  it  happens  to  fall."  And 
they  hold  that  a  man  may  not  erect  his  dam  so  high  as  to 
set  back  water  beyond  his  neighbor's  line,  in  "  its  natural 
and  ordinary  swellings  in  some  seasons  of  the  year."  ^ 

And  in  Rex  v.  Trafford,^  it  is  maintained  that  no  man 
may  change  or  obstruct  the  flow  of  the  water  of  a  stream 
for  his  own  benefit,  to  the  injury  of  another,  whether  it  be 
in  the  ordinary  state  of  water  while  flowing  in  a  bounded 
channel  at  all  seasons,  or  the  "  extraordinary  course 
[*260]  which  *its  superabundance  has  been  accustomed  to 
take  at  particular  seasons." 

If  a  mill-owner  flow  back  water  so  as  to  obstruct  the  natu- 
ral drainage  of  land  lying  near,  but  not  bordering  upon  the 
stream,  he  may  be  liable,  unless  the  obstruction  arose  from 
a  reasonable  use  of  his  own  land  or  privilege,  and  what  is  a 
reasonable  use  is  a  mixed  question  of  law  and  fact.^ 

14.  A  question  has  been  raised  and  discussed,  in  view  of 
the  general  principle  above  stated,  whether  any  riparian  pro- 
prietor may  have  an  action  for  damages  against  a  mill-owner 
for  setting  back  the  water  of  a  stream  beyond  the  line  of 
such  proprietor,  without  showing  some  actual  appreciable 
damage  thereby  done  to  his  land.  The  questions  have 
chiefly  arisen  where,  though  the  water  was  not  flowed  back 
above  the  banks  of  the  stream  upon  the  adjacent  land,  the 
water  of  the  current  was  deepened,  and  more  water  re- 
mained therein  than  otherwise  would  have  been  found  there 
at  a  similar  state  of  water  in  the  stream. 

1  M'Coy  V.  Danlcy,  20  Penn.  St.  85,  89.  See  also,  Burwell  v.  Ilobson,  12 
Gratt.  322.     See  Strout  v.  Millhridf^e  Co.,  45  Me.  76. 

2  Rex  V.  Trafford,  1  Barncw.  &  Ad.  874. 
'  Bassctt  V.  Company,  43  N.  H.  578. 


Sect.  3.]  USE   OF  WATER   FOR   MILLS.  829 

In  Garrett  v.  M'Kie,^  the  majority  of  the  court  of  South 
Carolhia  held,  that,  in  such  a  case,  in  order  to  recover,  the 
riparian  proprietor  must  show  some  appreciable  damage  as 
resulting  from  setting  hack  the  water  into  the  channel  upon 
his  land.  But  a  similar  question  having  arisen  in  Georgia, 
the  court  of  that  State  disapproved  of  the  doctrine  of  Gar- 
rett V.  M'Kie,  and,  after  referring  to  several  English  and 
American  cases,  maintain  the  broad  doctrine  that  to  flow 
back  water  upon  a  man's  land  against  his  consent,  whether 
already  submerged  or  not,  is  an  injury,  and  that,  in  the 
eye  of  the  law,  every  injury  imports  a  damage,  for  which 
nominal  damages  at  least  are  recoverable  by  a  suit  at  law, 
though  he  cannot  prove  an  actual  perceptible  damage,  and 
this  would  extend  as  well  to  the  owner  of  half  as  to  the 
owner  of  the  whole  bed  of  the  stream.^  At  a  later  period, 
however,  the  court  of  the  former  State  take  occasion  to  re- 
affirm the  doctrine  of  Garrett  v.  M'Kie  to  this  extent,  "  that 
backing  within  the  channel,  from  which  no  appreciable  dam- 
age results,  is  not  of  itself  a  legal  injury  which  will  sustain 
an  action.  The  proposition  which  thus  we  approve, 
*  results,  we  conceive,  from  the  reasonable  use  of  [*261] 
water,  which  every  one  through  whose  land  it  flows 
is  authorized  to  enjoy,  considered  in  connection  with  the 
necessities  of  machinery,  upon  sluggish  streams,  and  in  a 
flat  country."  ^ 

But  in  Ripka  v.  Sergeant,  Gibson,  C.  J.  says  :  "  The  pen- 
ning back  of  water  in  the  channel  of  a  stream  is  an  injury 
to  the  freehold,  though  the  banks  be  not  overflowed."  * 

Where  the  dam  of  one  mill  set  back  water  into  the  tail- 
race  of  another,  it  was  held  to  be  a  ground  of  action,  whether 
the  tail-race  was  upon  the  upper  mill-owner's  land  or  that  of 

1  Garrett  v  M'Kie,  1  Eich.  444. 

2  Hendrick  r.  Cook,  4  Ga.  241,  257,  265. 

3  Chalk  V.  M'Alily,  11   Rich.   153,   161.     See  also  Omclvany  v.  Jaggers,  2 
Hill,  So.  C.  6.34. 

*  Ripka  V.  Sergeant,  7  Watts  &  S.  913. 


330      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

another  by  the  consent  of  the  owner,  and  though  no  actual 
damage  could  be  shown  to  have  arisen.^ 

15.  The  broad  and  general  language  in  which  courts  have 
spoken  of  what  would  or  would  not  be  the  ground  of  an 
action  for  theoretic  injuries,  without  actual  damage,  occa- 
sioned to  the  land  of  one  man  in  a  proper  and  reasonable 
operation  of  the  mill  of  another,  has  tended  to  leave  this  still 
an  open  question,  and,  like  many  other  questions  as  to  the 
use  of  water,  it  will  remain  so  until  courts  will  define,  some- 
what more  accurately  than  some  of  them  have  hitherto  done, 
the  qualifying  limits  they  intend  to  apply  to  the  particular 
cases  when  making  use  of  general  propositions. 

Thus  it  is  said  by  Wright,  J.,  in  Waring  v.  Martin: 
"  Every  owner  of  land  over  which  a  watercourse  flows  has  a 
right  to  use  the  water,  but  he  must  use  it  without  inflicting 
any  substantial  injury  to  another,  or  he  is  liable,"  which 
seems  to  negative  the  idea  of  a  mere  theoretic  injury.^ 

And  in  the  cases  cited  below,  it  was  held  that  one  mill- 
owner  upon  a  stream,  in  order  to  have  an  action  against 
another  mill-owner  for  an  alleged  injury  done  to  the  opera- 
tion of  his  mill,  must  show  that  the  injury  was  a  practical 
and  perceptible  one.  It  would  not  be  enough  that  it  was  a 
mere  theoretical  one.^ 

16.  The  above  cases,  it  will  be  perceived,  were  between 

one  mill-owner  and  another,  and  do  not  necessarily 
[*262]   involve  *a  determination  of  the  question  between  a 

mill-owner  and  a  riparian  land-owner  above  him. 
And  the  language  of  Hemphill,  J.,  in  Haas  v.  Choussard, 
may  be  adopted  as  correct,  that,  i'  Whether  an  action  for 
throwing  back  water  will  lie  for  merely  nominal  damages, 
where  there  has  been  no  actual  injury,  is  not  free  from 
doubt,  though  supported  by  American  authorities."  * 

1  Graver  i'.  Scholl,  42  Penn.  67. 

2  Warrin<,'  v.  Martin,  Wii<,'Iit,  381. 

8  Thompson  v.  Crocker,  9  Pick.  59  ;  Cooper  v.  Hall,  5  Ohio,  .320 ;  Shreve  v. 
Voorhccs,  2  Green,  Ch.  2.5 ;  contra,  Ripka  v.  Sergeant,  7  Watts  &  S.  9. 
*  Ilaas  V.  Choussard,  17  Texas,  590. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  SSI 

But  in  Stout  V.  M' Adams,  the  court  of  Illinois  held  that  no 
one  had  a  right  to  create  an  obstruction  upon  his  own  land, 
so  as  to  set  back  water  upon  the  land  of  another  above, 
although  created  for  the  purpose  of  operating  a  mill ;  nor 
did  it  make  any  difference,  in  this  respect,  whether  there 
was  a  mill  standing  upon  the  upper  proprietor's  land  or  not.^ 

But  where  a  riparian  owner  built  a  dam  across  a  stream, 
to  create  a  fish-pond  thereby  upon  his  own  land,  but  inter- 
fered with  the  flow  of  the  stream  in  no  other  way,  it  was 
held  to  be  a  reasonable  use  of  the  water,  and  a  mill-owner 
below  had  no  cause  of  complaint  on  account  of  it,  either  at 
common  law  or  under  the  statute  as  to  mills  in  Massachu- 
setts.2 

17.  It  seems,  however,  to  be  well  settled,  that  a  mill- 
owner  may  not  enlarge  the  quantity  of  water  flowing  in  a 
stream  from  his  mill  through  the  land  of  a  lower  proprietor, 
by  turning  a  new  stream,  which  never  was  accustomed  to 
flow  into  the  same,  into  his  pond,  to  increase  the  capacity  of 
his  power  or  privilege.  "  The  wrong  consists,"  say  the  court, 
in  Tillotson  v.  Smith,  "  in  turning  any  water  upon  the  land 

which  does  not  naturally  flow  in  that  place It  can 

make  no  difference,  if  the  water,  wrongfully  turned  upon  a 
man's  land  against  his  will,  flows  in  the  channel  of  an  ancient 
stream,  or  in  a  course  where  no  water  flowed  before,  if 
similar  damage  results."  Nor  would  it  be  any  justification 
in  the  party  Avho  should  thus  turn  the  waters  of  a 
*stream  into  the  new  channel,  that  the  owner  of  the  [*263] 
land  below  was  thereby  actually  benefited.     No  one 

has  a  right  to  compel  another  to  have  his  property  improved 
in  any  particular  manner.^ 

18.  But  this  does  not  extend  to  preventing  a  proprietor 
upon  a  stream  digging  ditches,  or  doing  other  acts  in  the 
proper  cultivation  of  his  land,  though  the  effect  of  it  is  to 

1  Stout  V.  M'Adams,  2  Scamm.  67. 
'■^  Wood  V.  Edes,  2  Allen,  578. 

3  Tillotson  V.  Smith,  32  N.  H.  90,  95  ;  Merritt  v.  Parker,  Coxe,  460 ;  Par- 
dessus,  Traite'  des  Servitudes,  §§  58,  88. 


332  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

increase  the  quantity  of  water  in  the  stream  in  ordinary 
times.^ 

19.  Before  proceeding  to  the  subject  of  tlie  use  of  water, 
as  between  mill-owners  upon  the  same  stream,  it  may  be 
remarked,  that  it  seems  now  to  be  well  settled,  that,  if  one 
occupies  a  mill-privilege  upon  a  stream,  but  docs  not  appro- 
priate and  apply  the  whole  power  or  water  of  the  stream  to 
actual  use,  he  leaves  the  unappropriated  part  open  for  occu- 
pation by  any  riparian  proprietor,  in  the  same  manner  as  if 
no  mill  had  been  erected ;  ^  however,  the  opinion  of  the  ma- 
jority of  the  court  in  King  v.  Tiffany ,3  and  expressions  in  the 
decision  of  Davis  v.  Fuller,*  and  Heath  v.  Williams,^  might 
seem  to  conflict  with  this  position. 

The  extent  of  the  right  to  flow  in  such  cases  will  be  the 
height  to  which  a  dam  of  the  same  height  as  that  which  has 
been  sustained  for  twenty  years  would  flow,  although  some 
part  of  that  time,  by  leaking  and  want  of  repair,  the  dam  has 
not  kept  up  the  water  to  its  original  height.  The  owner  of 
the  dam  may  repair  it,  and  thereby  keep  up  the  water  uni- 
formly.^ 
[*264]  *20.  It  should  be  remembered,  then,  that  the 
owner  of  every  mill-privilege  may,  by  the  common 
law,  hold  two  relations  to  other  owners  of  mills  or  lands  upon 
the  same  stream,  namely,  that  of  riparian  proprietor  of  land 
and  that  of  a  mill-owner.  And,  as  it  seems,  he  may,  in  the 
first  capacity,  maintain  an  action  at  common  law  for  acts 
done  by  other  mill-owners,  for  which  he  could  not  recover  in 
a  suit  as  mill-owner.     Thus,  as  riparian  proprietor,  he  has  a 

1  Williams  v.  Gale,  3  Harr.  &  J.  231  ;  Kauffman  v.  Greisemer,  26  Penn.  St. 
407  ;  Martin  v.  Jett,  12  La.  501  ;  Lattimore  v.  Davis,  U  La.  161 ;  post,  p.  *354. 

2  Mason  v.  Hill,  5  Barnew.  &  Ad.  1  ;  Gary  v.  Daniels,  8  Mete.  466,  478; 
Brown  ;;.  Best,  1  Wils.  174;  Saunders  v.  Newman,  1  Barnew.  &  Aid.  262; 
Daggel,  J.  dissenting. 

2  King  V.  TiflTany,  9  Conn.  162. 

*  Davis  V.  Fuller,  12  Vt.  178. 

6  Heath  v.  Williams,  25  Me.  216. 

*  Jaekson  v.  IIurrinRton,  2  Allen,  243 ;  Cowell  v.  Thayer,  5  Mete.  253 ;  Eay 
V.  Fletcher,  12  Gush.  200, 


Sect.  3.]  USE    OF   WATER    FOR   MILLS.  333 

right  to  the  iininterriiptcd  natural  flow  of  a  stream,  so  far, 
at  least,  as  necessary  for  domestic  purposes,  for  drinking, 
washing,  watering  cattle,  and  the  like,  and,  in  some  cases, 
for  those  of  irrigation. ^ 

21.  As  the  owner  of  a  mill-privilege,  he  has  the  right  to 
occupy  the  same,  within  the  limits  of  his  own  land,  by  stop- 
ping this  flow  by  means  of  dams.  And  this  right  is  as  much 
an  element  of  property  as  any  other  quality  of  the  land  of 
which  it  is  an  accident.  In  respect  to  any  question  of  prior 
appropriation,  that  must  have  regard  to  the  quantum  of 
water,  and  not  the  quantum  of  the  fall,  since  the  latter  could 
only  be  augmented  by  subtracting  from  the  fall  belonging  to 
the  proprietor  above,  by  swelling  back  the  stream  upon  him, 
or  by  appropriating  a  part  of  the  fall  of  the  adjoining  proprie- 
tor below,  by  deepening  the  channel  within  his  boundary, 
and  thereby  carrying  out  the  bottom  on  a  level  to  some  point, 
in  the  inclined  plane  of  the  natural  descent,  lower  than  his 
own  line  ;  neither  of  which  he  has  a  right  to  do.  But  as  the 
fall  in  his  own  land  is  all  his  own,  he  loses  no  part  of  what  is 
left  within  that,  by  appropriating  a  portion  only  of  the  entire 
fall  at  first.2 

22.  And  it  may  be  repeated,  as  a  general  proposition,  that, 
neither  as  a  mill-owner  nor  as  a  riparian  proprietor,  has 
any  one  a  right  to  do  any  act  in  his  own  premises, 
*which  shall  cause  the  water  of  a  stream  to  flow  back   [*265J 
upon  either  the  land  or  the  mill  of  a  proprietor  above. 

And  it  was  even  held  in  Davis  v.  Fuller,  that  if,  by  reason  of 
a  mill-dam,  ice  accumulates  in  the  pond,  and  water  is  there- 
by caused  to  be  flowed  back  upon  an  existing  mill  to  its  ma- 
terial injury,  the  owner  thereby  becomes  liable  in  damages. 
But  this  seems  to  be  overruled  and  a  more  reasonable  doc- 
trine maintained  in  Smith  v.  Agawam  Canal  Co.,  where  it 

1  Evans  v.  Merrhveather,  3  Scamm.  492  ;  Johns  v.  Stevens,  .3  Vt.  303,  316  ; 
Tyler  v.  Wilkinson,  4  Mason,  395,  403. 

2  M'Calmont  v.  Wlutaker,  3  Kawie,  84,  90 ;  Gould  v.  Boston  Duck  Co.,  13 
Gray,  442,  453. 


334  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cii.  III. 

was  held  that,  if  the  lower  dam,  in  the  ordinary  stages  of  the 
water,  do  not  throw  back  water  upon  the  wheels  of  an  upper 
mill,  the  owner  will  not  be  responsible,  though  this  is  done 
by  the  accumulation  of  ice  when  the  stream  breaks  up,  and 
though  the  upper  be  an  ancient  mill.^ 

23.  Corresponding  to  this,  the  prior  occupant  of  a  mill- 
privilege,  who  owns  the  land  upon  both  sides  of  the  stream, 
has  a  right  to  an  unobstructed  flow  of  the  same  below  his 
mill  for  the  purpose  of  venting.)  as  it  is  called  by  the  court, 
the  waters  of  his  pond  according  to  the  natural  descent 
and  course  of  the  water.  Nor  can  a  subsequent  occupant  of 
a  mill-site  below,  back  the  water  so  as  to  deprive  the  first 
proprietor  of  this  natural  descent  and  flow.  But,  in  order  to 
set  up  this  priority  of  right,  he  must  own  both  sides  of  the 
stream,  or  maintain  his  dam  by  the  consent  of  the  owners  of 
the  side  not  belonging  to  him.^ 

24.  It  is  competent  for  the  owner  of  a  mill-privilege,  as 
such  owner,  or  as  riparian  proprietor,  to  change  or  deepen 
the  channel  of  a  stream  within  his  own  premises,  or  the  mode 
of  applying  it  to  use,  as  often  as  he  will,  provided  he  re- 
turn the  water  on  to  the  land  of  the  next  proprie- 

[*266]   *tor  at  its  accustomed  point,  and  do  nothing  that 
materially  affects  the  enjoyment  of  the  water  by  the 
adjacent  proprietors,  according  to  their  legal  rights.^ 

25.  Where  two  or  more  owners  of  mill-privileges  upon 
the  same  stream  shall  have  occupied  the  same,  as  above 
contemplated,  with  hydraulic  works  of  art,  they  have  each 
a  right  to  make  use  of  the  same  in  a  reasonable  manner, 
having  reference  to  a  like  right  in  the  other,  but  subject 
to  the  rights  of  the   riparian   proprietors   upon   the   same 

1  Cowles  V.  Kidder,  4  Fost.  364  ;  Tyler  v.  "Wilkinson,  4  Mason,  395,  400 ;  Gil- 
man  V.  Tilton,  5  N.  H.  231 ;  Davis  v.  Fuller,  12  Vt.  178  ;  Blanehard  v.  Baker, 
8  Mc.  253,  2G6;  Pugh  v.  Wheeler,  2  Dev.  &  B.  50;  Hill  v.  Ward,  2  Gilm.  285  ; 
Gary  v.  Daniels,  8  Mete.  466,  477  ;  Smith  v.  Agawam  Canal  Co.,  2  Allen,  355. 

-  Delaney  v.  Boston,  2  Ilarringt.  489 ;  Bliss  v.  Rice,  17  Pick.  23. 

3  Norton  v.  Valentine,  14  Vt.  239;  Ford  v.  Whitlock,  27  Vt.  205;  Stein  v. 
Burden,  29  Ala.  127. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  330 

stream,  and,  as  will  be  more  fully  shown,  if  a  question 
arises  in  any  given  case  what  would  be  such  a  reasonable 
use,  it  is  to  be  referred  to  the  decision  of  a  jury.  A  large 
proportion  of  the  cases,  where  conflicting  rights  are  set  up 
by  such  mill-owners  to  the  use  of  water,  will  be  found  to 
have  been  determined  by  the  application  of  this  broad  rule 
of  what  is  a  reasonable  use  in  view  of  the  circumstances  of 
each  particular  case.^  What  a  reasonable  use  of  water  may 
be,  in  any  given  case,  depends  upon  the  subject-matter  of  the 
use,  the  occasion  and  manner  of  its  application,  its  object, 
extent,  necessity  and  duration,  and  the  established  usage  of 
the  country,  the  size  of  the  stream,  the  fall  of  water,  its  vol- 
ume and  velocity  and  prospective  rise  and  fall,  all  of  which 
are  important  elements  to  be  taken  into  account  in  deter- 
mining the  question.^ 

26.  The  mode  and  extent  to  which  one  mill-owner  may 
use  and  apply  the  waters  of  a  stream,  as  between  him  and 
another  mill-owner,  is  not  what  would  be  reasonable  for  his 
particular  business,  but  what  is  reasonable,  having  reference 
to  the  rights  of  the  other  proprietors  on  the  stream,  without 
by  such  use  materially  diminishing  it  in  quantity,  or  cor- 
rupting it  in  its  quality.  If  one  requires  more  than  this,  he 
cannot  claim  it  as  a  natural  right.  The  necessity  of  one 
man's  business  is  not  to  be  made  the  standard  of  another 
man's  rights.'^ 

27.  All  the  cases  seem  to  concur  in  this,  that  no  mill- 

1  Gary  v.  Daniels,  8  Mete.  466  ;  Evans  v.  Merriweather,  3  Scamm.  492  ;  Beis- 
sell  V.  SchoU,  4  Dall.  211 ;  Chandlers.  Howland,  7  Gray,  348  ;  Johns  v.  Stevens, 
3  Vt.  308,  316  ;  Hendricks  v.  Johnson,  6  Port.  472  ;  Gould  v.  Boston  Duck  Co., 
13  Gray,  442,  450  ;  Pugh  v.  Wheeler,  2  Dev.  &  B.  50 ;  Snow  v.  Parsons,  28  Vt. 
459 ;  Parker  v.  Hotchkiss,  25  Conn.  330 ;  Davis  v.  Getchell,  50  Maine,  604 ; 
Springfield  v.  Harris,  4  Allen,  494. 

-  Davis  V.  Winslow,  51  Maine,  297.  In  Shears  v.  Wood,  7  J.  B.  Moore,  345, 
plaintiff  was  allowed  to  recover  upon  a  count  that  the  water  did  not  run  to  the 
plaintiff's  mills  as  they  were  accustomed  to  have  it,  though  not  described  as  an- 
cient mills. 

3  Wheatley  v.  Chrisman,  24  Penn.  St.  298,  302  ;  Brace  v.  Yale,  10  Allen.  447  ; 
s.  c,  4  Allen,  393. 


336  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

owner  has  a  right  to  divert  the  waters  of  a  stream, 
[*267]  and  *thereby  deprive  a  lower  proprietor  of  the  ben- 
efit thereof.^  And,  in  one  case,  this  was  applied  to 
its  utmost  extent,  although  the  diversion  was  made  for  the 
purpose  of  enabling  the  mill-owner  to  repair  his  works.^ 
But  this  does  not  impugn  the  right  of  reasonably  detaining 
the  water  by  such  proprietor  by  shutting  down  the  gates  of 
his  mill. 

28.  But  precisely  to  what  extent  the  owner  above  may  use 
the  water  for  manufacturing  purposes,  if  he  do  not  divert  it 
from  its  accustomed  channel,  does  not  seem  to  be  very  well 
defined.  In  other  words,  how  far  the  owner  above  shall  be 
allowed  to  use  the  water  of  the  stream  for  mechanical  and 
manufacturing  purposes,  where  such  use  may  produce  injury 
to  the  owner  below,  does  not  seem  to  be  very  well  settled  by 
any  of  the  adjudged  cases  in  England  or  this  country.  Each 
case  depends  upon  its  own  circumstances.  "  The  question 
of  the  reasonable  use  of  the  water  by  the  mill-owner  above, 
depending  as  it  must  upon  the  size  of  the  stream,  as  well  as 
the  business  to  which  it  is  subservient,  and  on  the  ever  vary- 
ing circumstances  of  each  particular  case,  must  be  deter- 
mined by  the  jury  and  not  by  the  court."  ^ 

29.  Questions  of  this  kind  have  often  arisen,  where  the 
owner  of  the  upper  mill,  upon  its  first  being  put  in  opera- 
tion, has  shut  down  the  gate  and  wholly  stopped  the  water 
till  the  pond  could  fill ;  or  has  been  obliged  to  shut  down  his 
gate  and  detain  the  water  to  raise  his  pond  to  a  sufficient 
height  to  drive  his  works,  and  the  lower  mill  has  suffered  by 
reason  of  such  detention.     Such  were  the  cases  of  Hartzall 


1  Thomas  v.  Brackney,  17  Barb.  654;  Snow  v.  Parsons,  28  Vt.  459;  Newhall 
V.  Ireson,  8  Cush.  595  ;  Sackrider  v.  Beers,  19  Johns.  241  ;  Butman  v.  Hussey, 
12  Me.  407  ;  Jiuld  v.  Wells,  12  Mete.  504. 

2  Van  Iloesen  i'.  Coventry,  10  Barb.  518,  520. 

8  Thomas  v.  Brackney,  17  Barb.  654,  656  ;  Parker  v.  Hotchkiss,  25  Conn.  321  ; 
Patten  v.  Munlen,  14  Wise.  473;  Hayes  v.  Wuldron,  44  N.  H.  584;  Davis  v. 
Winslow,  51  Maine,  295. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  337 

V.  Sill.^  and  Hoy  v.  SteiTett,^  Iletricli  v.  Deadlier,^ 
and  *  Wheeler  v.  Alil,*  all  of  which  were  decided  by  [*2G8] 
the  courts  of  Pennsylvania,  and  in  all  of  which  the 
idea  of  precedence  of  right,  arising  from  priority  of  occupa- 
tion, is  discarded.  In  the  case  of  Hoy  v.  Sterrctt,  the  plain- 
tiff's mill  had  been  in  operation  more  than  thirty  years, 
■when  the  defendant  erected  one  on  the  stream  above  him. 
In  working  his  mill,  the  defendant  often  detained  the  water 
in  his  pond  for  two  days  and  a  night  at  a  time,  for  which  the 
plaintiff  brought  his  action.  But  the  court  submitted  the 
question  to  the  jury,  under  the  instruction  that,  "  if  they 
believed  the  water  was  no  longer  detained  than  was  neces- 
sary for  the  proper  enjoyment  of  it,  as  it  passed  through  the 
defendant's  land,  for  the  use  of  his  mill,  it  was  a  damage  to 
which  the  plaintiff  must  submit." 

The  doctrine  of  this  case  was  reaffirmed  in  Wheeler  v. 
Ahl,  where  the  owner  of  an  upper  mill  enlarged  his  works, 
although  to  carry  them  he  had  to  shut  down  his  gate  at 
night,  and  not  run  his  works  till  the  next  morning,  whereby 
the  Avater  from  his  mill  did  not  reach  the  lower  mill  till 
eight  or  nine  o'clock  in  the  day,  and  during  the  remainder 
of  the  day  more  water  was  poured  into  the  stream  from  the 
upper  works  than  could  be  used  to  advantage  by  the  lower 
mill. 

In  Hetrick  v.  Deadlier,  the  plaintiff's  works  were  an 
ancient  grist-mill,  the  defendant's  a  modern  saw-mill,  on  the 
same  stream.  In  operating  his  mill,  the  defendant  some- 
times detained  the  water  from  three  to  five  days  or  more, 
and,  besides  using  the  water  for  driving  his  mill,  applied  it 
in  irrigating  his  land.  Besides  this,  he,  at  times,  let  out  so 
much  water  from  his  own  as  to  flow  the  plaintiff's  mill. 
The  court  were  urged  to  rule  that  such  a  detention  must 

1  Hartzall  v.  Sill,  12  Penn.  St.  248. 

2  Hoy  V.  Sterrett,  2  Watts,  327. 

3  Hetrich  v.  Deadlier,  6  Penn.  St.  32.  Sec  also  Mabie  v.  Matteson,  17  Wis. 
1  ;  Springfield  v.  Harris,  4  Allen,  496. 

*  Wheeler  v.  Ah\,  29  Penn.  St.  93. 
22 


338      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

necessarily  be  actionable,  as  being  a  violation  of  the  plain- 
tiff's rights.  But  they  declined  so  to  do,  and  submitted  the 
question  to  the  jury,  whether  it  was  a  reasonable 
[*269]  *detention  of  the  water  or  not.  "  If  he  detained  it 
no  longer  than  was  necessary  for  his  proper  enjoy- 
ment of  it,  the  plaintiff  cannot  recover,"  unless,  as  the  court 
added  in  their  instructions,  the  defendant  detained  the  water 
vexatiously  or  wantonly.  And  the  whole  court,  in  com- 
menting upon  and  approving  those  instructions,  refer,  as  a 
test  of  what  may  be  done,  to  "  the  reasonableness  of  the 
detention,  depending  as  it  must  on  the  nature  and  size  of 
the  stream,  as  well  as  the  business  to  which  it  is  subservient, 
and  on  the  ever-varying  circumstances  of  each  particular 
case." 

But  in  a  case  in  Indiana,  the  oldest  of  three  mills,  and 
highest  upon  the  stream,  was  the  defendant's  oil-mill ;  the 
lowest  and  next  in  age  was  the  plaintiff's.  After  the  latter 
had  been  in  operation  fourteen  years,  the  defendant  erected 
a  saw-mill  between  the  two,  in  which  he  used  a  different  kind 
of  wheel  from  those  in  use  in  the  other  mills,  and  which  re- 
quired a  great  deal  more  water  to  work  it.  The  stream  did 
not  furnish  a  constant  supply  of  water  to  run  the  mills,  and 
they  had  to  be  operated  by  "  gathering  heads."  In  conse- 
quence of  this  erection  and  mode  of  operating  the  defendant's 
saw-mill,  the  plaintiff"  was  not  able  to  work  his  mill  more 
than  half  as  much  as  before.  The  court  held  this  detention 
of  water  by  the  defendant  unreasonable,  and  ordered  it  to  be 
abated,  the  wheel  being  unsuited  to  the  stream. ^ 

A  leading  case  upon  this  subject  is  that  of  Merritt  v. 
Brinkerholf,^  where  the  plaintiff  had  a  flour-mill  situate  be- 
low the  defendant's  rolling  and  slitting  mill.  The  stream 
was  a  small  one,  and,  the  defendant's  dam  being  twenty-four 

1  Dilling  V.  Murray,  6  Ind.  324. 

2  Merritt  v.  Brinkcrhort",  17  Johns.  306,  322.  See  also  Heath  v.  Williams,  25 
Me.  209  ;  Twiss  v.  Baldwin,  9  Conn.  291  ;  Beissell  v.  Scholl,  4  Dall.  211  ;  Run- 
nels V.  BuUcn,  2  N.  II.  532 ;  Hendricks  v.  Cook,  4  Ga.  241  ;  Blanchard  v.  Baker, 
8  Me.  2.53,  270. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  339 

feet  in  height,  he  stopped  the  entire  waters  of  the  stream, 
more  than  an  hour  at  a  time,  while  he  was  heating 
his  iron,  *and  then  let  it  out  in  such  quantities  as  to  [*270] 
run  over  the  plaintiff's  dam  and  be  wasted,  and  the 
plaintiff's  mill  was  stopped  from  half  an  hour  to  two  hours 
daily.  The  rule  laid  down  by  the  court,  as  governing  such 
a  case,  was,  that  the  upper  mill  might  apply  the  water  to  the 
best  advantage,  but  not  so  as  to  render  the  lower  mills  on 
the  stream  useless  or  unproductive.  The  law  will  so  limit 
this  common  right  to  use  the  water  of  the  stream,  that  the 
owners  of  the  lower  mills  shall  enjoy  a  fair  participation  of 
it,  although  the  upper  mills  may  thereby  sustain  a  partial 
loss  of  business  and  profit.  The  upper  mill  must  not  use  the 
water  in  an  unreasonable  manner  so  as  to  be  materially  in- 
jurious and  destructive  to  the  mills  below.  The  jury  found 
for  the  plaintiff,  and  the  court  sustained  the  finding. 

In  Pitts  V.  Lancaster  Mills  ^  the  defendants  erected  a  mill 
above  the  plaintiff's  ancient  mill,  and,  while  filling  their 
pond,  in  order  to  start  their  own  mill,  stopped  the  water  and 
deprived  the  plaintiff  of  the  use  of  it.  But  it  was  held  to  be 
damnum  absque  injuria,  since  the  right  to  do  this,  in  a  rea- 
sonable manner,  was  incident  to  the  property  in  the  mill- 
privilege  of  the  defendant. 

It  is,  accordingly,  held  as  a  general  proposition,  that  the 
owner  of  land  over  which  a  watercourse  flows,  is  entitled  to  a 
reasonable  use  of  the  water  for  a  mill,  provided  his  dam  is  of 
a  magnitude  suited  to  the  size  of  the  stream  and  quantity  of 
water  usually  flowing  therein.  Nor  will  he  be  liable  to  the 
owner  of  mills  below  for  any  injury  arising  to  them  from 
such  use,  having  reference  to  the  general  custom  and  usage  of 
the  country  in  cases  of  dams  upon  similar  streams.^  He  may 
not  render  a  mill  below  useless,  but  must  so  use  the  water 
as  to  give  such  lower  mill  a  fair  participation  in  the  same.^ 

1  Pitts  V.  Lancaster  Mills,  13  Mete.  156. 

2  Springfield  v.  Harris,  4  Allen,  494 ;  Davis  v.  Getchell,  50  Maine,  604 ;  Ma- 
bie  V.  Matteson,  17  Wis.  1  ;  Davis  v.  Winslow,  51  Maine,  291  -293. 

^  Patten  v.  Marden,  14  Wise.  473. 


340  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

30.  The  subject  was  also  considered  by  the  court  in  the 
case  of  Barrett  v.  Parsons,^  and  in  Tliurber  v.  Martin, ^  where 
the  rules  to  be  observed  in  the  management  of  mills  upon  a 
stream  are  stated  substantially  to  be,  that  those  who  are 
lowest  upon  the  stream  must  take  the  water  subject  to  the 
previous  rights  of  those  above  them,  to  use  and  employ  it 
for  their  mills  and  works,  and  to  do  all  that  is  necessary  and 
usual  for  the  purpose  of  building  dams,  forming  mill-ponds, 
and  erecting  gates,  and  such  other  structures  and  apparatus 
as  may  be  convenient  and  proper.  But  the  owners  of  the 
upper  mills  are  bound  to  use  and  employ  the  water  in  a 
reasonable  and  proper  manner,  conformably  to  the 
[*271]  usages  *and  wants  of  the  community,  and  not  incon- 
sistent with  a  like  reasonable  and  proper  use  of  it  by 
others  on  the  same  stream  below. 

So  in  Gould  v.  Boston  Duck  Co.,^  the  court  states,  sum- 
marily, the  respective  rights  of  two  or  more  owners  of  mill- 
powers  upon  a  stream.  They  are  not  rights  to  the  natural 
flow  of  the  stream,  in  the  manner  in  which  it  originally  run, 
or,  as  if  no  mill  were  erected  upon  it,  or  to  be  worked  by  it. 
A  right  to  erect  a  dam  and  change  the  natural  mode  of  the 
flow  of  the  current  is  incident  to  the  right  of  applying  it  to 
the  working  of  mills,  and  this  right  is  common  to  every  ripa- 
rian proprietor.  Each  must,  therefore,  exercise  his  own 
reasonable  right  with  a  just  regard  to  a  like  reasonable  use 
by  all  the  others.  In  respect  to  the  time  and  mode  of  hold- 
ing up  and  letting  down  the  water  by  mills,  so  far  as  it  is 
reasonably  incidental  to  the  use  of  the  stream  for  mill  pur- 
poses, it  is  the  right  of  the  proprietor,  and  constitutes,  in 
part,  the  mill-privilege  which  the  law  gives  him.  As  prior- 
ity of  occupation,  in  this  respect,  gives  no  priority  of  right 
to  the  use  of  the  stream,  beyond  the  actual  extent  of  such 
occupancy,  where  an  upper  mill,  though  recent,  in  the  rea- 

1  Barrett  v.  Parsons,  10  Cusli.  367,  371. 

2  Tliurber  v.  Martin,  2  Gray,  394. 

3  Gould  V.  Hoston  Duck  Co.,  13  Gray,  442,  453.  See  also  Gary  v.  Daniels,  8 
Mete.  4GG;  Chandler  v.  Ilowland,  7  Gray,  348. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  341 

sonaWc  and  proper  use  of  it,  interrupts,  in  some  measure, 
the  oj^eration  of  the  lower  mill,  though  an  ancient  one,  the 
owner  of  the  latter  is  without  remedy,  even  though  it  were 
done  in  a  low  state  of  water  in  the  stream,  occasioned  by 
drought,  and  the  upper  mill-owner,  in  order  to  work  his 
mill,  is  obliged  to  Stop  the  natural  flow  of  the  water  while 
his  pond  is  being  filled. 

The  case  cited  seems  to  furnish  a  proper  limitation  to  the 
lano'uao-e  of  the  courts  in  some  of  the  cases,  which  assumes 

DO  ' 

that  a  mill-owner  has,  as  incident  to  the  same,  the  same 
right,  against  another  mill-owner,  to  the  natural  flow  of  the 
stream  as  exists  between  successive  riparian  propri- 
etors in  *respect  to  their  respective  lands,  indepen-  [*272] 
dent  of  any  application  of  the  water  for  purposes 
of  art.  And  among  the  cases  where  this  appears  to  have 
been  assumed  by  the  court  as  the  law,  are  Davis  v.  Fuller,^ 
and  King  v.  Tiffany.^ 

30  a.  Mill-owners  often  construct  dams  at  considerable 
distances  above  their  works,  for  the  purpose  of  creating  res- 
ervoirs of  water  to  be  drawn  for  use  when  the  condition  of 
the  stream  may  require  it.  This  often  gives  rise  to  ques-^ 
tions  of  some  difficulty  where  there  are  other  mill-owners 
upon  the  same  stream,  especially  if  their  mills  are  situate  be- 
tween the  reservoir  dam  and  the  mill  of  the  owner  of  such 
dam.  It  was  held  that  such  a  dam  and  pond  came  within 
the  principle  of  the  Massachusetts  mill  acts,  as  to  flowing  the 
lands  of  third  persons.^ 

So  the  above  cited  case  of  Gould  v.  Boston  Duck  Co.,  was 
one  where  the  injury  complained  of  arose  from  the  mainten- 
ance and  management  of  a  reservoir  dam  by  the  defend- 
ants which  was  situated  above  the  plaintiff's  works.  Simi- 
lar questions  came  up  in  the  case  of  Brace  v.  Yale,  the  facts 
of  which  were  substantially  these.     The  plaintiff  owned  an 

1  See  ante,  pi.  22  ;  Davis  v.  Fuller,  12  Vt.  178. 

2  King  V.  Tiffany,  9  Conn.  162. 

3  Wolcott  Co.  V.  Upham,  5  Pick.  292.  J 


342  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cu.  III. 

ancient  mill,  and  a  reservoir  had  been  maintained  by  him 
for  the  benefit  of  this  mill,  about  a  hundred  rods  above  it, 
for  over  forty  years.  The  plaintiff  ordinarily  opened  the 
gate  of  this  reservoir  in  the  morning,  and,  if  no  obstacle  in- 
tervened, the  water  reached  his  mill  in  about  twenty  min- 
utes. Another  owner,  the  defendant,  erected  a  mill  between 
the  plaintiff's  mill  and  reservoir,  and  raised  a  dam  which 
stopped  this  water,  often  detaining  it  two  hours  and  a  half 
to  fill  this  new  pond.  When  the  gate  of  the  reservoir  was 
closed  no  water  flowed  in  the  stream  below,  as  it  was  a  small 
one,  and  when  the  gates  of  the  middle  dam  were  closed  no 
water  flowed  to  plaintiff's  mill  until  the  new  pond  was 
filled.  Much  water  was  wasted  to  the  plaintiff,  by  the  oper- 
ations of  the  defendant's  mill,  because  the  same  was  not 
wanted  for  the  plaintiff's  mill.  But  the  defendant  used  no 
more  than  was  advantageous  for  working  his  mill.  Some 
days,  the  plaintiff's  mill  was,  in  this  way,  interrupted  half 
the  time.  The  court  held  that  the  plaintiff,  by  this  long  user, 
management,  and  enjoyment  of  the  water  in  the  reservoir,  in 
stopping  the  flow  of  the  stream  except  when  the  same  was 
let  out  by  gates,  and  only  in  such  quantities  as  he  needed 
from  time  to  time  for  operating  his  mill,  acquired  a  right 
which  was  adverse  to  the  original  rights  of  the  riparian  pro- 
prietor's to  the  natural  flow  of  the  stream,  and  which  he 
might  claim  by  prescription.  The  mere  erection,  however, 
of  a  dam  across  the  stream  for  raising  a  head  of  water  to 
work  a  mill,  and  the  cutting  of  sluices  and  waterways  for 
conducting  the  water  to  and  from  such  mill,  would  not  be 
deemed  adverse  to  the  other  riparian  proprietor,  although 
it  might,  in  some  measure,  change  the  natural  flow  of  the 
water  in  the  stream,  or  cause  a  temporary  obstruction  there- 
in, because  this  is  not  inconsistent  with  the  rights  of  such 
proprietors.  Nor  would  the  erection  of  a  reservoir  dam  and 
the  stopping  of  the  water  thereby,  until  it  had  filled,  be  ad- 
verse to  the  rights  of  such  proprietors,  if  the  water  was  then 
suffered  to  resume  its  accustomed  flow,  because  the  obstruc- 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  343 

tioiis  thereby  occasioned,  would  be  slight  and  temporary,  and 
not  inconsistent  with  the  rights  of  proprietors  below.  But 
by  this  long  adverse  enjoyment  by  the  plaintiff,  the  riparian 
proprietors  below  the  reservoir  dam  lost  the  right  to  the  nat- 
ural flow  of  the  stream,  as  well  as  the  right  to  control  the 
quantity  of  water  or  time  of  its  passage,  except  in  subordina- 
tion to  the  plaintiff's  acquired  rights,  and  in  a  way  not  to 
interfere  with  the  accustomed  working  of  his  mill  and  ma- 
chinery. He  could  no,t,  therefore,  lawfully  hold  back  the 
water  flowing  from  the  reservoir  for  the  purpose  of  filling  and 
refilling  his  pond,  nor  let  it  down  in  such  quantities  that  the 
plaintiff  could  not  appropriate  it  to  the  operation  of  his  mill, 
and  thereby  cause  the  water  to  run  to  waste.  The  circum- 
stance which  chiefly  distinguishes  this  from  the  case  of 
Gould  V.  Boston  Duck  Co.,  is  the  prescriptive  rights  wliich 
had  been  acquired  by  user  in  the  present  case,  in  favor  of 
the  reservoir.^ 

In  one  case  the  owner  of  a  stream  and  its  banks  erected  a 
dam  and  grist-mill  thereon,  and  sold  the  mill  and  privilege 
to  J.  S.  He  then  erected  another  dam  above  this,  across  the 
stream,  with  a  design  to  erect  a  mill  at  one  end  of  the  same. 
He  then  sold  to  thg  plaintiff  one  half  of  this  dam,  with  a  priv- 
ilege to  erect  and  carry  on  tan  works  on  the  bank,  but  sub- 
ject to  a  preferred  use  of  the  water  for  the  intended  mill 
upon  this  dam.  He  then  sold  his  property  in  this  dam  and 
privilege  to  J.  D. ;  J.  D.  then  purchased  the  lower  dam  and 
grist-mill  of  J.  S.,  through  whom  they  came  to  the  defend- 
ant. No  mill  was  erected  by  any  of  these  owners  on  the  end 
of  the  upper  dam  opposite  to  the  plaintiff's  tan  works ;  and 
in  times  of  low  water  the  defendant  drew  water  from  the 
upper  dam  by  a  gate  therein  which  had  the  effect  to  inter- 
rupt the  use  of  the  plaintiff's  tan  works.  It  was  held  that 
the  defendant,  as  owner  of  the  prior  mill,  might,  if  the  upper 
dam  stopped  the  water  and  prevented  its  reaching  his  mill, 

1  Brace  r.  Yale,  10  Allen,  441.     See  Pitts  v.  Lancaster  Mills,  13  Mete.  156  ; 
Perrin  v.  Garfield,  37  Verm.  204 ;  ante,  p.  *94. 


344  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

draw  the  water  from  the  upper  pond,  if  necessary,  for  work- 
ing liis  mill,  and  that  his  owning  the  upper  dam  with  the 
plaintiff  made  no  difference  in  respect  to  his  rights  as  owner 
of  the  lower  mill.^ 

31.  From  the  nature  of  property  in  the  use  of  water,  it 
may  often  happen  that  there  may  be  a  community  of  in- 
terest and  ownership  in  a  mill-privilege,  although  the  own- 
ership of  the  land  may  be  separate,  as  where  two  adjacent 
riparian  proprietors,  each  owning  to  the  thread  of  the 
stream,  have  a  water-power  in  the  water  of  such  stream  by 
reason  of  its  descent  along  the  channel  between  where  it 
enters  upon  and  where  it  leaves  their  premises.  The  privi- 
lege becomes  operative  and  valuable  by  the  two  joining 
in  occupying  it  by  a  dam  across  the  stream ;  in  which  case 
they  become  tenants  in  common  of  the  water-power,  al- 
though each  must  apply  it  upon  his  own  individual  land. 
In  such  case,  if  either  uses  the  water  in  an  unreasonable 
manner,  to  the  injury  of  the  other,  he  would  be  liable 
therefor,  since  neither  can  wantonly  waste  the  water  to 
the  prejudice  of  the  other.  Each  owner,  in  such  case, 
would  be  bound  to  keep  his  part  of  the  dam  in  repair,  so 
long  as  ho  uses  the  water  of  the  pond,  and  if  either  ceases 
to  use  it,  the  other  may  keep  the  dam  in  suitable  repair.^ 

Though  a  water-power,  that  is,  a  force  or  power  caused  by 
its  flow  and  fall  in  a  stream,  is  a  thing  incapable  of  partition 
by  metes  and  bounds  like  land,  it  may,  nevertheless,  be  the 
subject  of  joint  ownership,  wherein  any  one  proprietor  may 
become  entitled  to  any  given  proportion  of  the  whole  power 
or  flow  of  the  water.'^     And  whenever  two  persojis  draw 

1  Miner  v.  Gilmore,  12  Moore,  P.  C.  131. 

2  Runnels  v.  Bullcn,  2  N.  H.  532,  538 ;  Carver  v.  Miller,  4  Mass.  559 ;  Con- 
verse V.  Ferre,  1 1  Mass.  325  ;  Gwinneth  v.  Thompson,  9  Pick.  31  ;  2  Dane,  Abr. 
721  ;  Loring  v.  Bacon,  4  Mass.  575 ;  Doane  v.  Badger,  12  Mass.  65 ;  Campbell 
V.  Mesier,  4  Johns.  Ch.  334;  Mumford  v.  Brown,  6  Cow.  475;  Binney's  case,  2 
Bland,  Ch.  99,  114  ;  Bliss  v.  Rice,  17  Pick.  23,  36.  Sec  Pratt  v.  Lamson,  2  Al- 
len, 275,  286. 

2  Monroe  v.  Gates,  48  Maine,  467. 


Sect.  3.]  USE   OF  WATER   FOR   MILLS.  345 

"water  for  their  mills  from  the  same  dam,  and  neither  has 
any  peculiar  or  precedent  right  by  grant  or  prescription, 
each  may  contiuuc  to  use  the  water,  whatever  the  effect  may 
be  upon  tlie  other.^ 

It  has  accordingly  been  settled,  that,  if  either  mill-owner 
upon  such  common  mill-dam  have  occasion  to  repair  his  mill 
standing  upon  his  own  land,  or  the  flume  or  works  thereof, 
he  may  do  so,  and  if  he  exercises  reasonable  care  and 
diligence  in  prosecuting  the  work,  he  will  not  be 
*responsible  to  the  other  owner  of  the  privilege,  [*2T3] 
though  by  accident  he  sustains  damage  while  such 
repairs  are  being  made.  Nor  would  the  rule  be  different 
even  if  the  privilege  had  been  so  far  divided,  as  it  might  be, 
between  them,  that  each  had  the  exclusive  use  of  the  entire 
power  every  alternate  six  months.^ 

When  a  partition  has  been  made  of  a  water-power,  by  as- 
signing to  each  of  two  or  more  joint  owners  a  right  to  occupy 
it  exclusively  for  a  certain  period,  or  it  has  been  enjoyed  in 
that  way  till  a  partition  may  be  presumed,  the  one  who  for 
the  time  being  has  a  right  to  such  use  may  divert  the  waters 
of  the  pond  for  irrigation  upon  his  own  land,  but  not  to  con- 
tinue such  diversion  while  another  of  the  cotenants  has  a 
right  to  occupy  the  mill/^ 

The  partition  above  spoken  of  must  have  been  by  mutual 
arrangement  and  grant  between  the  several  owners  in  com- 
mon. At  common  law,  there  was  no  process  for  dividing  in- 
corporeal hereditaments  like  a  joint  water-power  by  what 
answers  to  metes  and  bounds.  But,  by  statute  in  Massachu- 
setts, partition  may  now  be  made  by  a  process  in  equity.* 

Where  there  were  a  grist-mill  and  saw-mill  occupying  a 
mill-privilege  upon  one  dam  belonging  to  the  same  person, 
and  the  only  mills  upon  the  privilege,  and  he  granted  one  by 

1'  Brown  v.  Bowen,  30  N.  Y.  538. 

2  Boynton  v.  Kees,  9  Pick.  528  ;  Bliss  v.  Rice,  17  Pick.  23,  38. 

3  Bliss  V.  Rice,  17  Pick.  23. 

*  Miller  v.  JNIiller,  13  Pick.  237  ;  Adam  v.  Briggs  Iron  Co.,  7  Cush.  361  ;  De 
"Witt  V.  Harvey,  4  Gray,  496,  499 ;  Gen.  Stat.  c.  136,  §  77. 


346      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

the  name  of  the  saw-mill,  for  instance,  it  passed  the  propor- 
tion or  share  of  the  water  in  the  river  belonging  to  such  mill, 
which  was  such.proportion  of  the  whole  right  in  the  brook  as 
the  water  used  to  drive  the  mill  conveyed  bore  to  that  used 
by  the  other  mill.  But  had  there  been  several  mills  upon 
the  stream  of  different  kinds,  all  drawing  from  the  same 
level,  and.  there  was  only  sufficient  water  to  supply  the 
power  necessary  to  drive  each  mill,  a  grant  of  one  of  these 
mills  would  carry  only  the  mill  and  the  water  actually  neces- 
sary to  drive  it.^ 

32.  The  rights  of  the  respective  mill-owners  upon  a 
stream,  in  respect  to  the  diversion  thereof,  are  the  same 
whether  the  stream  be  a  public  or  private  river.  In  neither 
case  may  the  owner  of  an  upper  mill  divert  the  water  of  the 

stream,  and  discharge  the  same  into  the  current 
[*274]   again  *below  the  mill  of  a  lower  owner.^     Nor  may 

a  lower  mill  flow  back  upon  an  upper  one,  though 
erected  upon  a  stream  which  is  a  highway,  and,  for  main- 
taining his  dam  across  it,  he  may  be  liable  to  indictment 
for  a  nuisance.  If  liable  for  the  nuisance,  it  is  to  the 
public  only,  and  his  rights  as  a  mill-owner  may  not  be 
infringed  by  another  mill-owner  upon  the  stream.^  And 
it  was  held  to  make  no  difference,  in  respect  to  acquir- 
ing a  right,  by  prescription,  to  flow  the  land  of  another,  that 
the  mill  by  which  it  was  done  stood  upon  an  embankment  or 
dam  formed  by  a  highway  across  a  navigable  stream."^ 

33.  There  are  some  cases  where  a  lower  mill  may  acquire 
the  benefit  of  expenditures  laid  out  by  the  upper  mill-owner, 
without  being  liable  to  contribute  therefor.  Thus  if  the  up- 
per owner  increase  the  capacity  of  the  stream  for  mill  pur- 
poses, by  enlarging  the  extent  of  his  pond,  or  the  reservoirs 
which  supply  his  mill,  the  lower  one  has  a  right  to  avail  him- 
self of  the  benefit  of  this,  as  something  incident  to  the  owner- 

1  Crittenden  v.  Field,  8  Gray,  621. 
'■^  Sackrider  v.  Beers,  10  Johns.  241. 
8  Stiles  V.  Hooker,  7 'Cow.  266. 
*  Borden  v.  Vincent,  24  Pick.  301. 


Sect.  3.]  USE   OF   WATER   FOB   MILLS.  347 

ship  and  situation  of  his  milL  Nor  would  he  be  liable  to  any 
land-owner  above  the  upper  mill,  whose  land  was  damaged 
by  such  increased  flowing.^  Nor  could  the  upper  mill-owner, 
after  having  increased  the  quantity  of  water  in  the  stream  by 
such  additional  flowing,  erect  works  between  the  upper  and 
lower  mills,  upon  his  own  land,  and  thereby  divert  water 
from  the  stream,  though  it  did  not  exceed  the  quantity 
which  he  had  thus  added  to  the  natural  flow  of  the  stream.^ 
34.  In  addition  to  what  has  been  said  upon  the  subject  of 
diverting  water  from  a  stream  in  its  connection  with  the 
rights  of  mill-owners,  it  may  be  stated,  that  it  mat- 
ters not  how  or  *for  what  purposes  such  diversion  [*275] 
is  made,  nor  whether  it  be  of  the  waters  of  the  prin- 
cipal stream,  or  a  remote  or  inconsiderable  branch  and  feeder 
thereof,  provided  such  feeder  be  itself  a  running  natural 
stream,  even  though  it  flow  underground,  if  in  a  well-defined 
channel.  Thus  where  one  dug  a  large  well  upon  his  own 
premises,  into  which  the  waters  of  a  running  stream,  which 
supplied  in  part  a  mill  below,  were  withdrawn  therefrom  by 
penetrating  through  the  earth  into  the  well,  and  were  then 
pumped  into  another  channel  and  not  returned  to  the  origi- 
nal stream,  and  it  was  known  when  he  dug  the  well  that 
such  would  be  the  effect,  he  was  held  liable  to  the  mill-owner 
for  such  diversion.  But  the  reader  will  keep  in  mind  the 
distinction  there  is  between  such  a  case  as  this,  and  those 
cases  to  be  hereafter  noticed,  where  waters  percolating 
through  the  earth  into  streams  have  been  prevented  from 
reaching  them  by  excavations  made  by  riparian  proprietors 
on  their  own  lands,  though  to  the  injury  of  mills  upon  the 
streams.^ 

1  Tourtellot  v.  Phelps,  4  Gray,  370,  376. 

-  Eddy  V.  Simpson,  3  CaL  249.  But  see  Whittier  v.  Cocheco  Mg,  Co.,  9  N. 
H.  4.54 ;  post,  pL  46,  53. 

3  Dickinson  v.  Grand  Junct.  Canal  Co.,  7  Exch.  282,  301 ;  post,  p.  *370 ;  Broad- 
bent  V.  Rarasbotham,  11  Exch.  602 ;  Wheatley  v.  Baugh,  25  Penn.  St.  528;  Ar- 
nold V.  Foot,  12  Wend.  330  ;  Dudden  v.  Guardians  of  Poor,  &c.,  1  Hurlst.  &  N. 
627;  Eawstron  v.  Taylor,  11  Exch.  369;  Evans  v.  Merriweather,  8  Scamm.  492. 

Whether  and  how  far  a  mill-owner,  who  draws  his  water  from  a  natural  pond, 


348  THE  LAW   OF'  BASEMENTS  AND   SERVITUDES.         [Ch.  III. 

35.  Keeping  in  mind  what  rights  are  incident  to  the  own- 
ership and  use  of  mills,  from  the  nature  of  such  property, 
the  reader  will  be  prepared  to  understand  what  are  meant 
by  easements  and  servitudes  as  applicable  to  mills  and  mill- 
privileges.  And  it  may  be  stated,  in  general  terms,  that  if 
any  land  or  mill  owner  shall  claim  a  right  to  a  different  or 
exclusive  use  of  a  stream,  or  to  use  its  waters  in  a  manner 
more  injurious  to  other  owners  upon  the  same  stream  than 
those  which  have  been  above  enumerated,  he  can  only  main- 
tain it  by  establishing  a  claim  of  easement  in  favor  of  his 
■  own  as  a  dominant  estate,  over  and  unon  that  of 
[*276]  the  other  *owner  in  reference  to  which  it  is  to  be 
exercised  as  the  servient  estate  ;  and  this  right  of 
easement  the  dominant  estate  must  have  acquired  at  some 
time  from  the  servient  one,  by  grant,  or  its  equivalent,  pre- 
scription.^ 

No  proprietor  of  land  on  the  same  stream  has  a  right,  at 
common  law,  to  divert  the  water  or  change  the  use  of  it  to 
the  injury  of  any  other  proprietor,  unless  such  right  has 
been  acquired  by  grant  or  prescription. 

Where  the  mill-owner  has,  in  fact,  exercised  the  right  of 
raising  or  diverting  the  water  by  keeping  up  his  dam  and 
flowing  the  land  of  another  for  a  period  of  twenty  years, 
without  objection  or  claim  of  damages,  it  is  evidence  of  a 
right  so  to  use  the  water  as  acquired  by  prescription  or 
grant.  But  it  is  equally  well  settled  by  the  authorities,  that 
if  any  riparian  proprietor  has,  by  means  of  a  dam,  made  a 
special  use  of  the  water  by  penning  it  up,  and  throwing  it 
back  upon  a  proprietor  above,  or  holding  it  back  from  the 
proprietor  below,  or  by  diverting  it,  and  has  so  used  the 

may  take  the  ice  tliat  forms  thereon,  or  prevent  others  from  doing  it,  for  use  or 
Bale,  was  left  unsettled  in  the  case  of  Cummings  v.  Barrett,  10  Cush   189. 

1  Wright  V.  Howard,  1  Sim.  &  S.  190;  Arnold  v.  Foot,  12  Wend.  330,  333  ; 
Brown  v.  Best,  1  Wils.  174;  Murgatroyd  v.  Robinson,  7  Ellis  &  B.  391  ;  Johns 
V.  Stevens,  3  Vt.  308,  316;  King  v.  Tiilany,  9  Conn.  162,  169;  Gary  v.  Daniels, 
8  Mete.  466,  479 ;  Shreve  v.  Voorhecs,  2  Green,  Ch.  25 ;  Cowell  v.  Thayer,  5 
Mete.  2.53. 


Sect.  3.]  USE   OF    WATER    FOR   MILLS.  349 

water  without  resistance  or  opposition  from  other  proprietors 
for  the  term  of  twenty  years,  he  thereby  establishes  a  right 
so  to  continue  to  use  it  by  way  of  prescription  or  presumed 
grant.^ 

36.  In  briefly  considering  what  rights  to  water-power,  in 
connection  witli  mills,  may  have  been  granted  or  acquired 
by  use,  rather  by  the  way  of  illustration  than  with  a  view  of 
anything  like  a  general  discussion  of  how  easements  may  be 
acquired,  which  has  been  considered  in  a  former  part  of  this 
work,  it  may  be  stated,  that  questions  have  sometimes  been 
made,  whether  that  which  is  granted  is  a  right  to  use 
*such  a  measure  or  quantity  of  power  for  a  specific  [*277] 
purpose,  and  none  other,  or,  by  naming  the  purpose 
for  which  it  is  conveyed,  it  is  made  a  measure  of  the  quan- 
tity that  is  granted,  but  with  liberty  to  use  it  for  such  pur- 
poses as  the  grantee  sees  fit. 

As  a  general  thing,  where  there  is  a  grant  of  sufficient 
water-power  to  carry  a  grist-mill  or  a  cotton-factory  of  such 
dimensions,  and  the  like,  it  is  construed  by  courts  to  be  the 
quantity  and  not  the  purposes  of  the  power  granted  that  is 
meant.  And  yet  it  is  competent  to  restrict  the  grant,  as  is 
often  done,  to  the  use  of  the  power  for  some  specific  pur- 
pose or  kind  of  business,  in  which  case  any  different  use 
would  be  against  right. 

These  questions  may  arise  either  in  cases  of  grants,  or 
reservations,  and,  it  will  be  observed,  the  cases  are  not 
those  where  land,  with  a  stream  of  flowing  water,  is  grant- 
ed, or  reserved,  but  a  right  to  draw  water  or  use  a  water- 
power  independent  of  the  ownership  of  the  bed  of  the 
stream. 

Thus  where  there  was  a  grant  of  sufficient  water-power  to 
carry  a  grist-mill  and  a  cotton-factory  with  not  more  than 
five  thousand  spindles,  it  was  held  to  be  a  mere  measure  or 

1  Cowell  V.  Thayer,  5  Mete.  253;  Bolivar  Mi;.  Co.  v.  Neponset  Mg.  Co.,  16 
Pick.  246  ;  Williams  v.  Nelson,  23  Piek.  141  ;  Buddington  v.  Bradley,  10  Conn. 
213;  Baldwin  v.  Calkins,  10  Wend.  167. 


350      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

description  of  the  quantity  granted,  and  not  the  use  to  which 
it  must  be  applied.^ 

In  the  case  of  Tourtellot  v.  Phelps,  the  grant  was  of  "  a 
privilege  to  draw  water  sufficient  to  carry  a  water-wheel, 
well  constructed,  with  twelve  feet  head  and  fall,  for  two 
common  blacksmith's  bellows,"  and  was  held  to  be  a  meas- 
ure of  power.  But  in  Ashley  v.  Pease,  a  fulling-mill 
[*278]  and  other  *mills  were  standing  upon  the  grantor's 
land,  and  his  grant  was  of  a  piece  of  land,  with  a  full- 
ing-mill standing  thereon,  with  a  right  to  draw  so  much 
water  as  may  be  necessary  to  carry  and  supply  the  fulling- 
mill  "  which  now  stands  or  may  hereafter  stand  on  the  same 
spot,"  with  a  provision  that  when  there  was  not  a  sufficiency 
of  water,  &c.,  the  grantee  was  to  draw,  &c.,  "  for  the  use  of 
the  said  fulling-mill  or  mills,  twelve  hours  in  the  twenty- 
four,"  &c.  It  was  held  to  be  a  limited  grant  of  water  to  be 
applied  to  the  use  of  a  fulling-mill  alone. 

And  yet  courts  always  incline  to  construe  such  grants  as 
limiting  or  measuring  the  quantity  of  power,  rather  than  de- 
fining and  restricting  the  uses  to  which  it  may  be  applied. 
Thus  the  grant  of  land,  with  the  privilege  of  water  to  turn 
the  fulling-mill  mentioned  in  the  deed,  when  the  same  is  not 
wanted  for  carding  wool,  reserving  water  for  carding-ma- 
chines  and  fulling-mill,  was  held  to  be  a  measure  of  power, 
and  not  a  restriction  as  to  the  purposes  for  which  the  water 
should  be  used,  and  had  reference  to  the  mills  then  in  ex- 
istence, and  the  use  then  being  made  of  the  water  when  the 
deed  was  made.^ 

1  Bigelow  V.  Battle,  15  Mass.  31.3;  Tourtellot  r.  Phelps,  4  Graj-,  370;  Ashley 
V.  Pease,  18  Pick.  268;  Hurd  v.  Curtis,  7  Mete.  94,  111;  Whittier  v.  Cocheco 
Mg.  Co.,  9  N.  H.  454 ;  Cromwell  v.  Selden,  3  Comst.  253 ;  Bardwell  v.  Ames, 
22  Pick.  354  ;  Atkins  v.  Bordman,  2  Mete.  470  ;  Rogers  v.  Bancroft,  20  Vt.  250 ; 
Adams  v.  Warner,  23  Vt.  395,  410;  Rood  v.  Johnson,  26  Vt.  64,  72.  This  is 
very  clearly  and  satisfactorily  illustrated  and  explained  in  an  able  opinion  by 
Merrick,  J.,  in  Pratt  v.  Lamson,  2  Allen,  275,  283 ;  Wakely  v.  Davidson,  26  N. 
Y.  387  ;  Dewey  v.  Williams,  40  N.  H.  227  ;  Blanchard  v.  Baker,  8  Maine,  253  ; 
Johnson  v.  Rand,  6  N.  II.  22 ;  Kaler  v.  Beaman,  49  Maine,  208  ;  Deshon  v. 
Porter,  38  Maine,  289  ;  Dc  Witt  v.  Harvey,  4  Gray,  489. 

■-i  Wakely  v.  Davidson,  26  N.  Y.  387,  394 ;  Borst  v.  Emjiic,  1  Seld.  33 ;  Olra- 
stead  V.  Loomis,  6  Barb.  152,  159;  Fisk  v.  Wilber,  7  Barb.  395,  402. 


Sect.  3.]  USE   OF   WATER   FOR   5IILLS.  351 

The  case  of  Shed  v.  Leslie^  was  similar  in  principle  to 
that  of  Ashley  v.  Pease,  with  the  additional  circumstance 
that  the  habendum  in  the  deed  was,  "  so  long  as  he  (the 
grantee)  or  they  shall  carry  on  clothiers'  business,  in  or  near 
said  place,"  &c.  The  grant  was  held  to  be  restricted  both 
in  the  quantity  and  purposes  of  the  power  granted. 

The  case  of  Garland  v.  Hodsdon  '^  may  also  be  referred  to 
as  an  instance  of  a  limited  power  and  use  reserved,  where 
there  had  been  a  grant  of  land  upon  a  stream,  with  part  of 
a  dam  across  the  same,  with  the  right  and  privilege  in  the 
dam  and  stream  to  take  water  sufficient  for  one  fulling-mill. 
The  deed  "  reserved  for  the  use  of  the  grist-mill,  or  such 
other  grist-mill  as  may  be  erected  at  the  place  where  the 
grantor's  mill  then  stood,  the  right  at  all  times  to  take  water 
sufficient  for  two  run  of  stones."  It  prohibited  the  grantee 
from  taking  the  water  "  when  the  same  shall  be  wanted  for 
the  grist-mill,"  &c.  It  was  held  to  be  a  grant  of  so  much 
power  as  would  carry  one  fulling-mill,  and  which  the  gran- 
tee might  use  as  he  pleased.  But  the  reservation  was  a  lim- 
ited one,  to  be  applied  only  for  the  use  specified,  namely,  a 
grist-mill. 

So  where  there  was  a  grant  of  a  parcel  of  land  and 
"  a  water-privilege  for  tanning  purposes  in  all  its  various 
branches,  which  privilege  is  to  come  out  of  the  grist-mill 
dam  "  which  belonged  to  the  grantor,  it  was  held  to  be  lim- 
ited and  restricted  to  the  uses  designated  in  the  grant.'^ 

Where  there  was  an  indenture  between  several  parties, 
carving  out  to  each  interests  in  a  joint  water-power,  giving 
to  one  the  right  to  draw  so  many  feet,  and  another 
so  *many  feet,  and  so  on,  with  a  provision  that,  if  it  [*279] 
should  be  insufficient  at  any  time  to  supply  so  much 
water,  each  was  to  share  in  the  above  i^i'oportions  in  what 
there  was  ;  it  was  held  not  to  be  a  grant  of  a  specific  power, 

1  Shed  V.  Leslie,  22  Vt.  498. 

2  Garland  v.  Hodsdon,  46  Me.  511. 
8  Dcshon  r.  Porter,  38  Maine,  289. 


352  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

but  a  grant  of  a  certain  proportion  of  the  entire  power,  meas- 
ured by  tlie  respective  quantities  mentioned.^ 

87.  If  the  owner  of  land  on  one  side  of  a  stream  grant  to 
the  owner  upon  the  opposite  side  a  right  to  extend  a  dam 
across  the  river  upon  his  bank,  it  is  primd  facie  a  grant 
thereby  of  tlie  sole  ownership  of  the  water-power  thereby 
created,  unless  the  deed  contain  restrictions  in  that  respect. 
And,  in  the  absence  of  any  such  deed,  a  user  by  one  of  the 
owners  of  the  entire  water-power  for  the  requisite  length  of 
time  gives  him  a  prescriptive  right  to  enjoy  the  same.  Nor 
does  the  fiict  that  he  has  during  this  time  used  it  for  the 
purposes  of  carrying  a  saw-mill  raise  any  presumption  that 
his  right  is  limited  to  such  a  use.^ 

So  if  one  of  two  owners  of  a  water-power,  having  separate 
mills  upon  opposite  sides  of  the  stream,  exercise  the  right  of 
the  first  use  of  the  water  at  his  mill,  when  there  is  not  suffi- 
cient for  both,  for  the  term  of  twenty  years,  he  will  thereby 
acquire  a  precedence  in  favor  of  his  own  mill,  which  will 
make  it,  as  to  the  other  mill,  the  dominant,  and  the  latter 
the  servient  estate.^ 

So  where  the  owner  of  land  upon  one  side  of  a  stream 
maintained  a  dam  across  it,  resting  it  upon  the  land  of  an- 
other upon  the  opposite  side,  and  enjoyed  and  maintained 
the  same  for  twenty  years,  it  was  held  to  be  no  evidence  that 
he  owned  the  entire  water-power  or  control  of  the  water  at 
that  point.  The  maintenance  of  a  dam  in  a  particular  mode, 
or  the  user  of  the  water  in  a  particular  way  for  twenty  years, 
is  evidence  of  a  grant  of  a  right  to  build  and  maintain  just 
such  a  dam  and  to  make  just  such  a  use  as  have  thus  been 
continued  for  that  time.  The  use  limits  and  defines  the  ex- 
tent of  the  rights.  If,  therefore,  there  be  a  surplus  of  water 
in  such  a  case,  the  owner  of  the  land  upon  the  bank  on 
which  the  dam  rests,  might  draw  it  and  use  it  for  carrying 

1  Bardwcll  v.  Ames,  22  Pick.  354. 

2  Bliss  V.  Hicc,  17  Pick.  23. 

8  Rogers  V.  Bancroft,  20  Vt.  250. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  353 

a  mill  upon  his  own  premises  if  lie  do  not  interfere  with  the 
enjoyment  of  the  right  already  acquired  by  the  owner  of  the 
dam.i 

38.  In  determining  what  would  constitute  an  easement  in 
another's  land,  in  respect  to  the  use  of  water,  which  may  be 
acquired  by  grant  or  adverse  use,  it  may  be  stated,  generally, 
in  accordance  with  what  has  before  been  said,  that  whatever 
would  constitute  a  nuisance  or  injury  by  one  to  the  enjoy- 
ment or  use  of  running  water  by  another,  may  grow  into  a 
right  on  the  part  of  him  who  shall  cause  such  nuisance  or 
injury,  if  done  in  the  occupation  of  his  own  premises  as  a 
dominant  estate  in  a  particular  manner,  for  twenty 
years,  *or  the  period  of  prescription  fixed  by  the  [*280] 
laws  of  the  State  in  which  the  premises  are  situated. 
Nor  is  it  necessary  that  the  use  should  be  exercised  in  pre- 
cisely the  same  form  during  the  whole  of  this  period,  pro- 
vided it  be  adverse,  exclusive,  and  under  a  claim  of  right, 
and  it  be  acquiesced  in  by  the  other  party.  If  it  is  substan- 
tially the  same  mode  and  extent  of  use,  it  will  be  sufficient.^ 

And  in  applying  this  doctrine  to  the  case  of  two  mills, 
where  the  dam  of  the  lower  one,  which  had  been  in  opera- 
tion eighty  years,  was  raised  so  as  to  flow  back  upon  one 
that  had  been  in  operation  forty  years,  the  court  of  Con- 
necticut held  that  the  upper  mill,  having  enjoyed  the  use  of 
the  water  in  a  particular  manner  for  fifteen  years,  the  period 
of  prescription  in  that  State,  had  acquired  a  right  to  such 
enjoyment,  with  which  a  lower  mill,  though  more  ancient, 
might  not  interfere.  Although  Gould,  J.,  in  a  dissenting 
opinion,  insisted  that  such  enjoyment  could  not  have  been 
adverse  unless  the  other  owners  upon  the  stream  had  had 
occasion  to  exercise  their  rights,  and  had  forborne  so  to  do, 

1  Buruham  v.  Kempton,  44  N.  H.  90. 

2  Belknap  v.  Trimble,  3  Paige,  577,  605  ;  3  Kent,  Comm.  442 ;  Bealey  v.  Shaw, 
6  East,  208  ;  Pugh  v.  Wheeler,  2  Dev.  &  B.  50  ,  Ingraham  v.  Hutchinson,  2  Conn. 
584  ;  Esling  v.  Williams,  10  Penn.  St.  126  ;  Watkins  v.  Peck,  13  N.  H.  360 ;  Johns 
V.  Stevens,  3  Vt.  308,  315;  Lapham  v.  Curtis,  5  Vt.  371,  380;  Shreve  v.  Voor- 
hees,  2  Green,  Ch.  25  ;  Sherwood  v.  Burr,  4  Day,  244.  ^ 

23 


354  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.       ;  [Cn.  III. 

and  had  acquiesced  in  the  exercise  of  the  right  by  the  other 
party.^ 

39.  But  a  right  on  the  part  of  a  mill-owner,  acquired  by 
prescription,  to  flow  back  water,  and  control  the  stream  for 
the  use  of  his  mill,  gives  him  no  right  to  prevent  a  riparian 
proprietor  above  from  cultivating  and  making  improvements 
upon  his  land,  or  using  the  waters  of  the  stream  for  that 
purpose,  unless  he  thereby  sensibly  affects  the  rights  of  such 
mill-owner  in  the  use  of  the  water,  and  works  an  injury  to 

his  mill.^ 
[*2S1]  *40.  Nor  does  a  mill-owner  acquire  any  prescrip- 
tive rights  in  respect  to  the  user  and  enjoyment  of 
water  by  another  mill,  if  the  user  by  the  first,  though  long 
continued,  was  no  invasion  of  the  rights  incident  to  the 
second.^ 

41.  But  a  proprietor  upon  a  stream  may,  by  adverse  user 
and  enjoyment,  acquire  a  right  to  divert  the  water  of  a 
stream  to  the  injury  of  mill-owners  and  riparian  proprietors 
below.*  And  it  is  even  stated  in  one  case,  that  "  an  absolute 
right  to  a  watercourse  may  be  acquired  by  an  uninterrupted 
possession,  use,  and  occupation,  claiming  right  thereto  ad- 
verse to  all  others."  ^ 

42.  So  one  may  acquire  a  right  by  prescription  to  flow  the 
land  of  another  by  means  of  a  dam  or  obstruction  in  the 
stream  upon  his  own  land.*^  And,  because  a  right  to  create 
a  permanent  obstruction  in  a  stream  and  watercourse  may 
be  acquired  by  user,  it  was  held  that  one  who  had  a  right  to 
a  watercourse  for  purposes  of  navigation,  might  maintain  an 

1  Ingraham  v.  Hutchinson,  2  Conn.  584,  592,  594. 

2  Shrevc  v.  Voorhees,  2  Green,  Ch.  25.  See  Bardwell  v.  Ames,  22  Pick.  354, 
35G. 

3  Parker  v.  Ilotchkiss,  25  Conn.  321,  330. 

*  Arnold  v.  Foot,  12  Wend.  330 ;  Wright  v.  Howard,  1  Sim.  &  S.  190 ;  Ma- 
son V.  Hill,  5  Barnew.  &  Ad.  1  ;  Newton  v.  Valentine,  14  Vt.  239 ;  Bealey  v. 
Shaw,  6  East,  208 ;  Campbell  v.  Smith,  3  Halst.  140 ;  Middleton  v.  Grcgorie,  2 
Rich.  630. 

'"  Rogers  v.  Page,  Brayt.  169;  s.  c,  Ibid.  201. 

S  Uurlbat  v.  Leonard,  Brayt.  201. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  355 

action  for  creating  an  obstruction  therein,  altliougli  he  had 
suffered  it  to  become  clogged  by  the  deposit  of  mud  in  it, 
and  to  remain  so  for  sixteen  years.^ 

So  one  may  acquire  a  prescriptive  right  to  foul  and  corrupt 
the  waters  of  a  stream,  while  carrying  on  a  business  upon  its 
banks  which  has  that  effect,  as  is  the  case  with  that  of  tan- 
yards,  working  of  ores  or  minerals,  and  various  kinds  of 
manufactures,  and  chemical  works.'-^ 

*So  where  the  owner  of  an  upper  mill  had  enjoyed  [*282] 
the  privilege  of  throwing  cinders  and  scorias,  created 
in  his  business,  into  the  stream,  which  floated  down  the 
same  and  filled  it  up  so  as  to  hindcT  the  operation  of  a  lower 
mill,  and  had  done  this  adversely  to  the  lower  mill  for  more 
than  twenty  years,  reckoned  from  the  time  when  it  began  to 
be  injured  thereby,  it  was  held  that  a  right  to  continue  the 
same  was  thereby  acquired  in  favor  of  such  upper  mill/^ 

The  same  rule  substantially  holds  in  cases  where  there  is 
necessarily  a  greater  or  less  deposit  of  foreign  substances  in 
a  stream,  when  using  its  waters  for  purposes  of  art,  such  as 
saw-dust  from  a  saw-mill,  bark  from  a  tan-yard,  soap  from  a 
manufactory,  and  the  like.  So  far  as  this  is  reasonable,  it 
may  be  done  with  impunity,  though  it  occasions  some  loss  or 
inconvenience  to  the  owners  of  the  mills  or  lands  below.  If 
it  essentially  impairs  the  use  of  the  water  below,  it  would  be 
deemed  to  be  unreasonable  and  unlawful.  This  may,  more- 
over, depend  upon  the  size  and  nature  of  the  stream  ;  for 
what  would  be  a  serious  injury  upon  one,  might  be  of  imma- 
terial consequence  upon  another.*  The  question  in  each 
case  is,  whether  the  acts  complained  of  were  done  in  the 
reasonable  use  of  the  stream,  and  in  determining  this,  the 
jury  should  consider  the  necessity  or  importance  of  the  right 

1  Bower  v.  Hill,  1  Bing.  N.  C.  549.     See  also  Ilenarick  v.  Cook,  4  Ga.  241, 261 . 

-  Moore  v.  Webb,  1  C.  B.  n.  s.  673 ;  Wright  v.  Williams,  1  Mees.  &  W.  77  ; 
Carlyon  v.  Levering,  1  Hurlst.  &N.  784 ;  Wood  v.  Sutcliffe,  8  Eng.  L.  &  Eq.  217. 

8  Murgatroyd  v.  Robinson,  8  Ellis  &  B.  391  ;  Ingrahara  v.  Hutchinson,  2  Conn. 
591  ;  per  Could,  J.    See  Carlyon  v.  Lovering,  1  Hurlst.  &  N.  784. 

*  Snow  V.  Parsons,  28  Vt.  459. 


356  THE   LAW   OF   EASEIVTENTS   AND   SERVITUDES.         [Cn.  III. 

claimed  so  to  discharge  the  waste,  as  well  as  the  extent  of 
the  injury  likely  to  be  caused  to  the  other  party. ^  But  a 
right  thus  to  foul  or  encumber  a  stream  may  be  acquired  to 
any  extent  by  an  adverse  user  for  the  requisite  period  of 
time.^ 

One  has  no  right  to  use  the  water  of  a  stream  so  as  to  fill 
it  or  clog  it  with  foreign  or  noxious  matter  which  would  ma- 
terially interfere  with  the  use  of  the  water  below.  In  this 
case  the  upper  works  were  a  tan-yard,  from  which  bark,  hair, 
and  filth  were  thrown  into  the  stream  and  carried  to  the 
plaintiff's  mill  below.^ 

43.  Corresponding  to  the  right  which  may  be  gained  by 
adverse  user,  to  increase  the  head  of  water  at  one's  mill  by 
raising  the  pond  thereof  so  as  to  flow  the  land  of  another,  is 
that  of  increasing  the  fall  by  deepening  the  bed  of  the  stream 
below  the  mill  and  beyond  the  line  of  the  mill-owner's  land. 
If,  by  doing  this,  and  so  placing  his  wheel  as  to  make  use  of 
such  increased  fall,  he  shall  have  enjoyed  the  benefit  thereof 

the  requisite  period  of  time,  he  may  acquire  a  right 
[*283]  to  continue  it  as  a  servitude  on  *the  lower  estate,  and 

an  easement,  in  respect  to  which  his  is  the  dominant 
estate.* 

44.  Partly  from  the  necessity  there  is,  in  order  to  make 
use  of  a  mill-privilege,  that  the  water  used  in  operating 
a  mill  should  flow  freely  from  the  same,  and  partly  from 
its  ordinarily  being  incident  to  the  ownership  of  an  ease- 
ment that  the  same  should  be  kept  in  a  condition  to  be 
used  by  the  owner  of  the  estate  to  which  it  belongs,  it 
follows  that  a  mill-owner,  whenever  it  is  necessary  to  clear 
out  the  tail-race  or  channel  by  which  the  water  is  dis- 
charged from  his  mill,  may  do  so,  though,  in  order  to  ac- 
complish it,  he  is  obliged  to  go  upon  the  land  of  another, 

1  Veasie  v.  Dwinell,  ."iO  Maine,  490. 

'•^  Jones  V.  Crow,  32  Pcnn.  St.  398,  406 ;  ante,  p.  *219 ;  Hayes  v.  Waldron,  44 
N.  11.  58.'j. 
8  Houser  v.  Hammond,  39  Barb.  89 ;  post,  p.  *400. 
*  Towiiscnd  V.  M'Donald,  14  Barb.  460. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  357 

doing  no  more  injury  to  such  proprietor's  land  than  is  neces- 
sary.^ 

45.  So  if  there  be  an  embankment  in  another's  land,  by 
means  of  which  the  water  is  retained  in  a  mill-pond,  and 
the  same  break  away  or  require  repairs,  by  reason  of  the 
lawful  use  of  the  waters  of  the  pond,  the  mill-owner  may 
go  upon  the  land  where  such  embankment  stands  and  re- 
pair it. 

But  if  he  had  broken  the  same  by  raising  his  head  of 
water  higher  than  he  had  a  right  to  do,  he  could  not  justify 
going  upon  such  land  to  repair  the  embankment.^ 

46.  When  a  right  to  use  or  apply  water,  in  any  particu- 
lar manner,  or  to  a  certain  extent,  has  been  acquired,  either 
as  incident  to  the  land,  or  by  grant  or  prescription,  it  will 
not  be  lost  or  impaired  by  the  mere  change  in  the  mode 
of  using  it,  provided  such  change  do  not  materially  affect 
the  rights  of  other  persons.  Otherwise  there  could  be  no 
improvements  made  in  the  application  of  machinery 

*or  the  useful  arts.  The  question  in  such  cases  is,  [*284] 
whether  the  alteration  is  of  the  substance  or  the 
mere  quality  of  the  thing.-^  One  of  the  cases  illustrating  this 
point  is  Hale  v.  Oldroyd,"*  where  one  for  agricultural  pur- 
poses had  acquired  by  long  usage  a  right  to  receive  the  flow 
of  certain  surplus  water  of  a  stream  into  a  pond  in  his  land, 
and  having  filled  that,  dug  three  small  ones.  The  proprie- 
tor above  stopped  the  flow  of  the  water  to  these,  but  it  was 
held  that  the  owner  of  the  pond  had  not  thereby  lost  his 
right  to  have  the  flow  of  the  water. 

This  question  has  been  raised,  more  frequently  than  upon 
other  grounds,  upon  changes  made  in  substituting  wheels 

1  Prescott  V.  "Williams,  5  Mete.  429;  Preseott  v.  White,  21  Pick.  341  ;  Bris- 
bane V.  O'Neall,  3  Strobh.  348  ;  Doane  v.  Badger,  12  Mass.  63  ;  Kauffman  v. 
Greisemer,  26  Penn.  St.  407  ;  Darlington  v.  Painter,  7  Penn.  St.  473  ;  Peter 
V.  Daniel,  5  C.  B.  568,  578,  579  ;  11  TouUier,  Droit  Civil  Fran^ais,  449. 

■■^  Fessenden  v.  Morrison,  19  N.  II.  226. 

3  Luttrell's  case,  4  Rep.  86;  Allan  v.  Gomme,  11  Adolph.  &  E.  759. 

*  Hale  V.  Oldroyd,  14  Mees.  &  W.  789. 


358  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.         [Cii.  III. 

of  a  different  size  or  construction,  or  in  the  nature  of  the 
business  carried  on  in  the  works  upon  the  stream. 

Thus  in  Luttrell's  case,^  where  one  prescribed  for  a  grist- 
mill or  fulling-mill,  he  might  sustain  it,  by  proving  either  ; 
and  a  change  of  a  mill  from  a  grist-mill  to  a  fulling-mill  did 
not  impair  the  rights  belonging  to  the  same,  if  no  prejudice 
thereby  arose  to  other  owners,  by  diverting  or  obstructing 
the  water. 

In  Saunders  v.  Newman,^  the  plaintiff's  mill  was  an  an- 
cient one,  for  operating  which  he  had  substituted  a  large  for 
a  small  wheel,  but  placed  the  same  xipon  the  original  Ifevel 
of  the  former  one,  and  it  actually  took  less  water  to  carry 
it  than  the  former  one.  The  defendant,  an  owner  of  a  mill 
below  the  plaintiff's,  altered  his  works  so  that  by  their  opera- 
tion he  interfered  with  the  operation  of  the  plaintiff's  mill, 
and  claimed  a  right  to  do  so,  inasmuch  as  the  plaintiff  had 
not  acquired  a  right  to  maintain  his  present  wheel. 
[*285]  But  *the  court  held  that  the  plaintiff  had  not,  by 
this  change,  lost  the  right  to  have  the  water  flow 
from  his  mill  as  formerly,  and  might  apply  it  in  such  man- 
ner as  he  pleased,  provided  it  did  not  prejudice  the  rights 
already  acquired  by  the  lower  mill.  "  The  defendant,  there- 
fore," says  Holroyd,  J.,  "  had  no  right  to  use  the  water,  in 
this  case,  after  the  erection  of  the  plaintiff's  mill,  in  a  differ- 
ent manner  than  it  had  been  accustomed  to  be  used  before, 
for,  at  all  events,  by  that  act  the  plaintiff  appropriated  to 
himself  the  water  flowing  in  that  particular  way." 

It  has  accordingly  been  held,  that,  where  one  had  acquired 
a  right  to  draw  water  for  a  mill  standing  upon  an  ancient 
dam,  he  might  cease  to  use  tlie  water  at  that  place,  and  draw 
it  by  gates  to  operate  a  mill  upon  another  sit&  below,  pro- 
vided he  did  not  increase  the  quantity  so  drawn.     "  It  is 

1  Luttrell's  case,  4  Rep.  86  ;  Johnson  v.  Rand,  6  N.  H.  22  ,•  Bulleu  v.  Run- 
nels, 2  N.  II.  255  ;  Blanchard  v.  Baker,  8  Me.  253 ;  Allan  v.  Gomme,  1 1 
Adolph.  &  E.  759. 

'^  Saunders  ».  Newman,  1  Barncw.  &  Aid.  257,  262 ;  Buddingtou  v.  Bradley, 
10  Conn.  213,  219 ;  Mcrritt  v.  I'arkcr,  Coxe,  460,  403. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  359 

immaterial,"  say  the  court,  "  to  tlie  plaintiff  at  what  spot  the 
defendants  apply  the  water  to  a  wheel,  or  what  machinery 
that  wheel  turns,  so  long  as  they  do  not  exceed  their  rights 
in  the  quantity  they  use."  ^ 

In  the  above  action,  the  defendants  drew  their  water 
through  a  gate  at  one  end  of  a  dam, 'on  the  other  end  of 
which  the  plaintiff  had  a  mill.  They  used  the  water  some 
three  miles  below  this  dam.  But  they  had,  by  artificial 
reservoirs,  increased  the  quantity  in  the  stream  above  this 
dam  at  their  own  expense,  and  in  dry  times  drew  so  much 
of  this  extra  quautitjj  of  water  that  the  plaintiff  lost  the  bene- 
fit of  it  at  his  mill,  though  ho  had  the  usual  and  natural  sup- 
ply ordinarily  running  in  the  stream  at  such  times.  For 
this  he  brought  his  action,  and  it  was  held  that  the  defend- 
ants had  a  right  to  use  this  additional  supply  of  water  as  they 
did,  for  the  benefit  of  their  mills.^ 

In  King  v.  Tiffany,^  which  has  already  been  referred  to, 
the  plaintiffs  erected  their  mill  in  1802  ;  the  defend- 
ants *theirs,  below  the  plaintiffs',  in  1818,  and  raised  [*286] 
their  head  of  water  so  high,  that  when,  in  1832,  less 
than  fifteen  years  (the  period  of  prescriptive  right  in  Con- 
necticut) after  the  erection  of  the  defendants'  dam,  the  plain- 
tiffs put  a  new  wheel  into  their  mill,  and  placed  the  same 
lower  than  the  former  one,  it  was  obstructed  by  the  back- 
water of  the  defendants'  pond.  The  majority  of  the  court 
held  that  the  plaintiffs  had  a  right  thus  to  change  their 
wheel,  theirs  being  a  prior  mill,  and  that  the  acts  of  the  de- 
fendants in  keeping  up  their  pond  to  the  obstruction  thereof 
was  against  right. 

The  opinion  of  Dagget,  J.  in  favor  of  the  defendants,  under 
such  circumstances,  seems  to  be  more  in  accordance  with  the 
modern  notions  of  courts  upon  the  law  of  the  case. 

So  a  mill-owner  may  adopt  improved  machinery  in  his 

1  Whittier  v.  Coclieco  Mg.  Co.,  9  N.  H.  454. 

2  But  see  ante,  pL  33.     See  Eogers  v.  Bruce,  17  Pick.  184 ;  post,  pL  53. 
2  King  V.  Tiffany,  9  Conn.  162. 


360  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cii.  III. 

mill,  -which  takes  less  water  to  carry  it  than  that  in  use  be- 
fore, although  the  effect  of  this  may  be  to  keep  a  higher  state 
of  water  in  his  pond.  So  he  may  change,  at  his  pleasure,  the 
point  at  which  the  power  is  applied,  as,  for  instance,  he  may 
draw  the  water  on  to  his  wheel  from  the  top  instead  of  the 
bottom  of  the  flume.^ 

But  this  right  to  change  the  machinery  in  a  mill,  even  by 
adopting  that  of  an  improved  character,  may  be  limited  by 
its  effect  upon  other  mills  ;  as  where  the  defendant  erected  a 
saw-mill  upon  a  stream  just  above  the  plaintiff's,  and  intro- 
duced into  it  machinery  which  required  so  little  water  to 
carry  it,  that  what  was  discharged  from  his  wheel  was  insuf- 
ficient to  carry  the  mill  of  the  plaintiff  to  advantage,  it  was 
held  that  it  was  an  injury  to  the  plaintiff  for  which  he  might 
sustain  an  action.^ 

And  where  the  introduction  of  new  machinery  into  one 
mill  is  a  nuisance  to  another,  it  is  no  justification  that  the 
mill  in  which  it  is  used  is  an  ancient  one.     In  respect  to  the 

use  of  such  machinery  it  is  a  new  mill.'^ 
[*287]  *Nor  is  it  a  defence  to  the  owner  of  an  upper  mill 
for  obstructing  the  natural  flow  of  the  stream,  to  the 
injury  of  a  mill  below,  that  the  owner  of  the  lower  mill  had 
changed  his  works  so  as  to  require  more  than  his  accustomed 
supply  of  water,  or  had  changed  the  mode  of  applying  the 
water.* 

47.  The  owner  of  a  watercourse,  as  has  heretofore  been 
stated,  may  change  the  course  of  a  stream  through  his  own 
land,  provided  he  does  not  thereby  diminish  the  beneficial 
use  of  the  water  to  the  adjacent  proprietors.  So  he  may 
change  the  same  back  to  its  original  channel,  unless  other 
proprietors,  having  a  right  to  the  use  of  the  water,  have  been 
led  by  such  original  change  to  expend  money  in  order  to  en- 

1  Co  well  V.  Thayer,  5  Mete.  253. 

2  Wentworth  v.  Poor,  38  Me.  243. 
^  Simpson  v.  Seavey,  8  Me.  138. 

*  Buddington  v.  Bradley,  10  Conn.  213;  Johnson  v.  Lewis,  13  Conn.  303; 
Cox  V.  Matthews,  1  Ventr.  237  ;  Mcrritt  v.  Parker,  Coxe,  458. 


Sect.  3.]  USE   OF   WATER  FOR  mLLS.  361 

joy  the  benefit  of  the  same,  in  its  new  channel,  and  would  be 
injured  by  such  second  change.  By  suffering  them  to  ex- 
pend money  upon  their  premises,  in  reference  to  the  new 
channel,  as  if  it  were  to  be  a  permanent  one,  he  dedicates  it 
to  their  use,  in  its  then  state  and  condition. ^ 

So  if  a  new  channel  has  been  found  for  the  current  of  a 
stream,  and  the  riparian  proprietors  have  enjoyed  it  in  that 
condition  for  twenty  years,  they  thereby  gain  a  right  to  its 
use,  nor  can  the  land-owner  change  it  again,  against  their 
consent.^ 

The  grantee  of  a  mill  would  have  no  right  to  have  the 
course  of  the  stream  from  the  same  over  another's  land 
changed  into  a  new  place.  But  it  would  be  otherwise  if  the 
water  by  natural  means  changed  its  course  and  found  a  new 
channel.^ 

48.  If  one,  having  gained  a  right  to  foul  the  water  of  a 
stream  by  carrying  on  a  trade  upon  its  banks  by 
which  a  *certain  quantity  of  fouling  matter  is  dis-  [*288] 
charged  into  it,  increase  his  works,  and  thereby 
increase  the  quantity  of  such  matter  discharged,  he  will 
be  responsible  to  the  proprietors  below  for  such  increase. 
And  Cresswell,  J.  remarked,  "  If  a  man  goes  on  increas- 
ing the  use  every  year,  he  has  not,  actually,  used  the 
stream  for  the  whole  period  in  the  manner  he  claims," 
which  remark  was  applicable  to  the  English  statute  of  pre- 
scription.^ 

49.  In  order  to  treat  this  subject  with  anything  like  com- 
pleteness, the  mode  of  using  and  managing  water-power  for 
operating  mills  should  be  noticed,  in  order  that  a  line  may 
be  drawn  between  what  would  be  a  legitimate  use  and  what 

1  Ford  V.  Whitlock,  27  Vt.  265 ;  Norton  v.  Valentine,  14  Vt.  239 ;  Wood- 
bury V.  Short,  17  Vt.  387  ;  Devonshire  v.  Eglin,  7  Eug.  L.  &  Eq.  39;  s.  c,  14 
Beav.  .5,30;  Townsend  v.  M'Donald,  14  Barb.  460. 

2  Dalaney  v.  Boston,  2  Harringt.  489. 

3  Miller  v.  Bristol,  12  Pick.  550. 

*  Moore  v.  Webb,  1  C.  B.  n.  s.  673 ;  Holsman  v.  Boiling  Spring  Co.,  1 
M'Carter,  345. 


362      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  111. 

ought  to  be  resisted  by  other  proprietors,  if  they  would  pre- 
vent a  mill-owner  acquiring  rights  as  against  them,  by  pre- 
scription, as  well  as  to  ascertain  what  might  be  done  in  de- 
fending against  such  adverse  user. 

What  a  mill-owner  may  or  ought  to  do  in  the  manage- 
ment of  his  dam  and  mill,  and  keeping  the  same  in  repair, 
often  varies  with  the  variant  circumstances  of  the  different 
cases. 

Thus,  if  there  were  no  other  mill  upon  the  stream,  and  he 
were  to  suffer  his  dam  to  go  to  decay,  and  the  water  of  his 
pond  to  escape  by  its  breaking  away,  it  might  afford  no  cause 
of  action  to  other  proprietors  upon  the  stream,  who,  if  they 
had  had  mills  standing  thereon,  to  be  thereby  damaged  or 
endangered,  might  have  an  action  for  such  negligence,  or 
want  of  care.  A  mill-owner,  in  other  words,  is  bound  to  use 
reasonable  care  and  diligence  in  keeping  his  dam  and  works 
safe  and  in  proper  repair,  and  is  responsible  if,  by  want  of 
such  care  and  diligence,  a  mill-owner  below  is  injured.  But 
if  a  mill-dam  gives  way,  or  other  damage  to  a  lower  mill  re- 
sult from  inevitable  accident  to  the  upper  mill,  the  owner  of 
the  mill  causing  the  damage  is  not  responsible  therefor.  In 
Delaware  there  is  a  statute  requiring  notice  to  be  given 
by  an  upper  mill-owner,  to  those  below  him  upon 
[*289]  *the  stream,  of  any  extraordinary  discharge  of  water, 
whether  by  accident  or  intentionally  on  the  part  of 
the  upper  owner.^ 

50.  A  question  somewhat  analogous  to  that  of  damages 
occasioned  by  an  extraordinary  flood  in  a  stream  by  the 
breaking  away  of  an  upper  dam,  is  that  of  damages  occa- 
sioned to  an  upper  mill,  in  times  of  freshets  or  high  floods 
in  the  stream,  by  the  water  behig  prevented  by  a  lower  dam 
from  subsiding  as  it  otherwise  would  have  done.  The  ques- 
tion supposes  such  lower  dam  so  constructed  b,s  not  to  occa- 
sion any  backwater  upon  the  upper  mill  in  any  ordinary 

1  Lapham  v.  Curtis,  5  Vt.  371,  381  ;  M'llvaine  v.  Marshal],  3  Harringt.  1  ; 
Ross  V.  Horsey,  3  Ibid.  60;  Soulc  v.  Russell,  13  Mctc.  436. 


Sect.  3.]  USE   OF  WATER   FOR  MILLS.  3G3 

state  of  the  stream.  Some  of  the  cases  seem  to  hold  that 
the  lower  mill-owner  would  be  responsible  to  the  upper  one 
for  such  injury.  Other  cases  would  only  hold  him  responsi- 
ble for  an  injury  caused  by  flowing  back  the  water  in  its 
usual  state,  or  in  such  freshets  as  usually  and  periodically 
occur,  and  which  the  mill-owner  ought  to  have  regarded  in 
erecting  his  dam. 

In  Pugh  V.  Wheeler,^  the  language  of  the  court  Avas  : 
"  One  has  the  right  at  no  time  to  prevent  the  water  flowing 
from  the  land  of  the  proprietor  above  as  it  has  usually  done, 
more  than  the  proprietor  above  has  the  right  to  divert  the 
stream  so  as  to  prevent  it  from  flowing  to  him  below."  And 
they  held  the  party  responsible  for  such  temporary  obstruc- 
tion, the  difference  between  a  permanent  and  occasional  ob- 
struction being  only  in  the  amount  of  damages.  And  in  the 
case  of  Thompson  v.  Crocker,^  the  court  appear  to  recognize 
the  right  of  an  upper  mill-owner  to  maintain  an  action  for 
having  his  mill  obstructed  "during  freshes,"  where  the 
damage  "  was  caused  when  the  water  was  unusually  high," 
if  his  mill  had  sustained  any  actual  perceptible  damage  in 
consequence  of  the  erection  of  the  defendant's  dam. 

*The  court  do  not  in  either  of  the  above  cases  seem  [*290] 
to  have  considered  the  distinction  which  some  of  the 
cases  make  between  freshes  ordinarily  or  periodically  occur- 
ring and  those  extraordinary  floods  which  sometimes  occur 
in  streams,  which  no  foresight  can  anticipate  or  guard  against, 
consistently  with  the  reasonable  use  of  the  several  privileges 
upon  a  stream. 

Thus  in  China  v.  Southwick,  one  was  authorized  to  erect 
a  dam,  but  not  so  high  as  to  flow  or  injure  a  certain  bridge. 
After  the  erection  of  the  dam,  by  reason  of  extraordinary 
rains  and  high  winds,  the  water  flowed  back  and  injured  the 
bridge,  which  it  would  not  have  done  had  it  not  been  for  the 
dam.     The  court  held  that  the  owner  of  the  dam  was  not 

1  Pugh  V.  Wheeler,  2  Dev.  &  B.  50,  53. 
^  Thompson  v.  Crocker,  9  Pick.  59. 


364  THE  LAW   OF   EASEMENTS  AND   SERVITUDES.         [Ch.  III. 

responsible,  the  true  doctrine  being,  "  causa  propinqua  non 
remota  spectatur.'^  ^ 

In  Smith  v.  Agawam  Canal  Co.,  just  cited,  the  defend- 
ants erected  a  dam  below  the  plaintiff's  ancient  mill,  which 
only  occasioned  damage  to  the  plaintiff's  works  at  certain 
times,  when,  upon  the  breaking  up  of  the  ice  in  the  stream, 
it  was  stopped  by  the  defendant's  dam,  and,  by  being  piled 
up,  stopped  the  flow  of  the  water,  and  set  it  back  upon  the 
plaintiff's  works.  It  was  held  to  be  a  consequence  too  re- 
mote to  be  charged  upon  defendants'  dam.  The  general 
principle  stated  is  :  "  Riparian  proprietors  may  erect  and 
maintain  dams  on  their  own  lands  across  streams,  to  raise  a 
head  of  water  for  the  working  of  mills,  without  being  liable 
for  consequences  which  are  casual,  remote,  and  uncertain."^ 

61.  A  peculiar  case  may  be  noticed  in  this  connection,  in 
which  a  party,  injured  by  the  act  of  another,  was  held  to  be 
remediless,  because  it  was  incident  to  a  lawful  act  on  the 
part  of  the  latter.  In  Pixley  v.  Clark,  the  defendant 
[*291]  had  *purchased  of  the  plaintiff  a  strip  of  land  along 
a  stream,  upon  which  he  erected  a  mill  and  dam, 
and  raised  a  head  of  water.  Upon  this  strip  of  land,  and 
adjacent  to  the  plaintiff's  land,  he  erected  an  embankment 
for  the  purpose  of  thereby  raising  the  water  in  his  pond. 
The  effect  of  this  was  found  to  be,  that  the  water,  when  thus 
raised,  percolated  through  the  natural  banks  of  the  stream, 
and  reached  the  plaintiff's  land  and  injured  it.  But  inas- 
much as  the  defendant's  embankment  was  properly  con- 
structed, and  he  had  a  right  to  erect  it  on  his  own  land,  and 
thereby  to  raise  a  head  of  water  for  the  use  of  his  mill,  the 
adjacent  land-owner  was  without  remedy  for  the  indirect  and 
consequential  damages  thereby  resulting  to  him.^ 

52.  Though  the  remedy  which  one  has  whose  right  of 
easement  is  invaded,  as  well  as  what  one  may  do  to  guard 

1  China  v.  Southwick,  12  Me.  238;  Smith  r.   Agawani  Canal  Co.,  2  Allen, 
355. 

2  Smitli  V.  Agawam  Canal  Co.,  2  Allen,  355. 
8  Pixley  V.  Clark,  32  Barb.  268. 


Sect.  3.]  USE   OF   WATER   FOR   MILLS.  365 

against  encroachments  which,  if  continued,  may  grow  into 
easements,  are  treated  of  in  another  part  of  this  work,  it 
may  be  proper  to  refer,  in  this  connection,  to  one  or  two 
cases  more  especially  applicable  to  mills. 

Ordinarily,  if  one  wrongfully  flows  back  water  upon  the 
mill  of  another  by  an  obstruction  placed  by  him  in  the 
stream  within  his  own  land,  or  prevents  the  flow  of  water 
to  such  mill,  the  owner  thereof  may  enter  upon  the  land  of 
the  party  causing  this  obstruction,  and  remove  it.^  But 
there  is  often  a  difficulty  in  knowing  when  this  may  be 
applied,  for  there  are  cases  where,  from  the  peculiar  nature 
of  the  ownership,  if  a  mill-owner  is  injured  by  the  acts  of 
another,  he  must  resort  to  an  action  at  law,  or  process  in 
equity  for  redress.  In  one  case  it  was  held  that,  where  the 
upper  proprietor  turned  a  second  stream  into  the  one  natu- 
rally flowing  through  his  land,  and  thereby  threw  more 
water  than  naturally  flowed  in  such  stream  into  the 
*  current  in  another's  land  below,  the  latter  had  a  [*292] 
right  to  stop  such  extra  flow,  before  reaching  his 
land,  and,  if  necessary  in  order  to  do  it,  might  stop  the 
stream  altogether,  without  subjecting  himself  to  an  action 
in  favor  of  the  one  who  caused  the  diversion.^ 

But  where  of  two  mill-owners  upon  opposite  ends  of  a 
dam,  and  drawing  water  from  the  same  pond,  one  had  a 
right  to  the  exclusive  use  of  the  water  when  insufficient  to 
carry  both  mills,  and  the  other,  in  violation  of  this  prece- 
dence of  right,  continued  to  draw  water  when  insufficient  to 
supply  both  mills,  it  was  held  that  the  former  mill-owner 
had  no  right  to  create  a  permanent  obstruction  to  the  flow 
of  the  water  to  the  other  mill  in  order  to  turn  the  same 
towards  his  own.-^     It  is,  however,  the  duty  of  the  one  hav- 

1  Hodges  V.  Raymond,  9  Mass.  316;  Baten's  case,  9  Eep.  54  6;  Colburn  v. 
Richai-ds,  13  Mass.  420;  Langford  v.  Owsley,  2  Bibb.  215;  Dyer  v.  Depui,  5 
Whart.  584;  Heath  v.  Williams,  25  Me.  295 ;  Bemis  v,  Clark,  11  Pick.  452. 

2  Per  Kinsey,  C.  J.,  Merritt  v.  Parker,  Coxe,  460 ;  Tillotson  v.  Smith,  32  N. 
H.  90,  95  ;  Pardessus,  Traite'  des  Servitudes,  §  88. 

^  Curtis  V.  Jackson,  13  Mass.  507. 


366  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

ing  the  subordinate  right,  to  take  notice  and  not  to  draw  the 
water  when  there  is  a  deficiency  in  quantity  for  both.  But 
if  he  continues  to  draw  in  such  a  state  of  water,  the  other 
party  may  enter  upon  his  premises  and  stop  the  passage  of 
the  water  to  his  mill,  subject,  however,  to  the  duty  of  re- 
moving such  obstruction  as  soon  as  there  is  again  sufficient 
for  both  mills. ^ 

53.  A  case  of  a  qualified  right  to  stop  another  in  the  use  of 
the  water  of  a  stream,  not  very  analogous,  it  is  true,  to  those 
above  stated,  was  where  a  mill-owner  had  acquired,  by  use, 
a  right  to  maintain  a  dam  and  flume  on  another's  land,  and 
thereby  controlling  the  waters  of  a  pond  which  served  as  a 
reservoir  for  his  mill  below.  The  owner  of  the  land,  having 
erected  a  mill  on  his  own  land,  raised  the  dam  to  a  much 
greater  height,  and  much  increased  the  head  of  water,  and 
proceeded  to  draw  from  the  same,  discharging  it  into  its  ac- 
customed channel  running  to  the  lower  mill.  It  was  held 
that  the  lower  mill-owner  had  no  right  to  obstruct 
[*293]  *  him  in  drawing  the  water  in  the  pond  as  low  as 
the  surface  of  the  former  pond.^ 

It  need  only  be  added,  that,  as  the  law  aims  to  provide  an 
adequate  remedy  for  every  legal  injury,  there  is  often  an 
election  of  remedies  for  a  person  suflfering  by  the  wrongful 
inteference  with  his  rights  as  a  mill  or  riparian  owner. 


SECTION  IV. 

OF   RIGHTS   IN   ARTIFICIAL   WATERCOURSES. 

1.  Two  classes  of  artificial  watercourses  defined. 

2.  Distinction  between  natural  and  artificial  watercourses.* 

3.  Case  of  Arkwrigbt  v.  Cell.     Owner  may  stop  the  latter. 

4.  The  owner  of  artificial  watercoiirse  may  not  foul  the  water. 

5.  Case  of  Wood  v.  Waud.     One  cannot  claim  the  water  on  another's  land. 

1  Sumner  v.  Foster,  7  Pick.  32. 

-  Rogers  v.  Bruce,  17  Pick.  184.     See  Whittier  v.  Cocheco  Mg.  Co.,  9  N.  H. 
454  ;  ante,  pi,  4G. 


Sect.  4.]  RIGHTS   IN   AKTIFICIAL   WATERCOURSES.  367 

6.  Case  of  Greatrex  v.  Hayward.     Stopping  drains  on  one's  own  land. 

7.  Case  of  Magor  v.  Chadwick.     Case  of  fouling  an  artificial  stream. 

8.  Same  rules  not  applicable  to  natural  as  to  artificial  watercourses. 

9.  Of  acquiring  an  easement  in  an  artificial  watercourse. 

10.  An  artificial  watercourse  in  another's  land  an  incorporeal  right. 

11.  Cases  of  right  to  enter  and  clear  watercourses. 

12.  Easement  of  discharge  of  water  upon  another's  land. 

13.  Adverse  use  of  artificial  watercourse  gains  an  easement. 

14.  Parol  license  to  use  land,  &c.  revocable. 

15.  What  are  easements  in  natural  and  artificial  watercourses. 

16.  How  far  they  differ  in  this  respect. 

17.  18.  When  artificial  may  acquire  the  properties  of  natural  streams. 

19.  Effect  of  laying  an  aqueduct  from  a  spring  to  a  dwelling-house. 

20.  Effect  of  water  flowing  artificially  twenty  years  through  one's  laud. 

21.  One  having  an  easement  in  water  cannot  enlarge  it  at  will. 

22.  Of  effect  of  changing  the  course  of  an  artificial  watercourse. 

23.  When  one,  having  changed  a  watercourse,  is  estopped  to  change  it. 

24.  Case  of  Middleton  v.  Gregoire.     One  having  no  right  to  abandon  his  dam. 

25.  Case  of  Lefevre  v.  Lefevre.     Change  of  direction  of  watercourse. 

26.  Of  change  in  a  stream  by  natural  causes,  and  its  effect. 

1.  The  watercourses  thus  far  spoken  of  have  been  such 
as  exist  by  nature,  and  it  has  been  of  the  use  and 
*appropriatian  of  the  water  flowing  in  these,  in  con-   [*294] 
nection  with  the   riparian   ownership  of  the   land 
through  which  they  flow,  that  it  has  been  attempted  to  sys- 
tematize and  embody  the  rules  by  which  they  are  governed. 

It  is  proposed,  in  the  next  place,  to  consider  watercourses 
which  are  artificial  in  their  original  construction,  and  to 
point  out  wherein  the  law  as  to  easements  and  servitudes, 
connected  therewith,  differs  from  that  of  those  connected 
with  natural  streams  of  water,  as  they  relate  to  irrigation, 
the  operation  of  mills,  or  otherwise. 

These  may  naturally  be  divided  into  two  classes ;  first, 
where  the  supply  of  the  watercourse  is  itself  created  by  art ; 
and  second,  where  new  and  artificial  channels  are  made  to 
serve,  in  whole  or  in  part,  the  purposes  of  natural  conduits 
of  water  flowing  upon  or  issuing  from  the  earth. 

2.  The  first  great  distinction  between  natural  and  artifi- 
cial watercourses  is,  that  while  the  use  of  the  one  is  incident 
to  the  ownership  of  the  land  itself  in  v* inch  it  exists,  that  of 


368  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

the  other  may  exist  merely  as  an  easement  in  such  land,  be- 
longing to  another  than  the  owner  of  the  land.  And  the  dis- 
tinction between  the  two  classes  of  artificial  watercourses 
may  be  generally  stated  to  be,  that  if  the  supply  of  water  be 
artificially  created,  as  well  as  the  course  in  which  it  is  made 
to  flow,  no  property  like  that  of  a  perpetual  easement  can  be 
acquired  in  the  water  by  the  use  thereof,  especially  if  the 
original  purposes  of  its  creation  were  temporary  in  their 
nature,  while,  if  the  artificial  course  be  a  substitute  for  a  nat- 
ural one,  in  conducting  the  flow  of  a  permanent  stream  of 
water,  an  easement  in  the  case  of  such  water  may  be  acquired 
by  the  owner  of  the  land  through  which  it  passes,  by  an 
enjoyment  thereof  for  a  requisite  period  of  time. 

This  proposition,  as  well  as  what  is  meant  by  creating  an 
artificial  supply  for  a  watercourse,  and  by  creating  it  for  pur- 
poses temporary  in  their  nature,  can  best  be  illustrated  by  a 
few  recent  English  cases,  which  it  will  be  necessary  to  state 

at  considerable  length. 
[*295]  *3.  The  first  of  these  is  Arkwright  v.  Gell,i  de- 
cided in  the  Court  of  Exchequer  in  1839.  In  that 
case  it  appeared  that,  as  early  as  1705,  the  proprietors  of 
certain  mines  then  in  operation  made  arrangements  with 
certain  persons  to  drain  these  mines  of  water,  by  a  "  sough," 
as  it  was  called,  which  had  its  outlet  in  the  land  of  a  third 
person.  The  water  from  the  mines  flowed  through  this 
land  into  a  natural  stream,  upon  which,  in  1772,  the  plain- 
tiff erected  a  manufactory,  and  enjoyed  the  use  and  benefit 
of  the  stream  thus  enlarged  till  1825,  when  the  defendants, 
being  also  owners  of  other  mines  connected  with  those 
drained  by  the  first  sough,  made  an  arrangement  with  the 
latter  owners,  but  for  the  benefit  of  the  defendants,  to  con- 
struct a  new  sovgh  which  should  enter  the  mines  at  a  lower 
level,  and  drain  them.     The  effect  of  this  was  that  the  water 

1  Arkwri',rht  v.  Gell,  5  Mees.  &  W.  203  ;  Wood  v.  Waud,  3  Exch.  748,  778; 
Grcatrex  v.  Ilayward,  8  Exch.  291  ;  Norton  v.  Valentine,  U  Vt.  239  ;  North 
Eastern  Railway  Co.  v.  Elliott,  Johns.  &  U.  154. 


Sect.  4.]  EIGHTS   IN   ARTIFICIAL   WATERCOURSES.  369 

from  tlie  mines  no  longer  flowed  into  the  first  soug-h,  and 
the  plaintiff  lost  so  much  of  what  had  been  thereby  supplied 
for  operating  his  mill.  At  his  request  a  barrier  was  placed 
in  the  second  sough,  which  prevented  this  diversion  of  this 
water  till  1836,  when,  in  order  to  test  his  right  to  claim  it 
as  appurtenant  to  his  mill,  the  present  action  for  such  diver- 
sion was  brought. 

The  court  did  not  sustain  the  action,  and  held,  among 
other  reasons,  that  wliat  the  plaintiff  had  been  thus  enjoy- 
ing was  not  a  natural  watercourse,  but  a  supply  created  by 
another  person  under  whom  the  plaintiff  did  not  claim,  and 
who  had  created  it  for  his  own  benefit  to  enable  him  to  work 
his  mines  ;  that,  though  the  plaintiff  had  enjoyed  the  flow 
of  the  water  for  such  a  length  of  time,  it  was  in  no  sense 
a  user  adverse  to  the  owner  of  the  mine,  to  whom  it  must 
have  been  indifferent  what  use  was  made  of  the  water 
after  it  had  been  discharged  from  the  sough;  *that  [*296] 
the  plaintiff  thereby  acquired  no  right  to  insist  upon 
the  water  being  kept  up  to  a  certain  height  in  the  mine,  but 
that  the  mine-owner,  if  it  was  convenient,  in  working  it,  to 
drain  from  a  lower  level,  had  a  right  so  to  do. 

It  will  be  remarked,  as  an  important  circumstance  in  this 
case,  that  the  one  who  dug  the  second  sough  and  caused 
the  diversion  was  interested  in  the  mines  thereby  to  be 
drained.  Had  it  been  otherwise,  had  he  been  a  stranger, 
or  merely  the  owner  of  the  land  lying  between  the  outlet 
of  the  first  sough  and  the  place  where  the  water  entered 
into  the  natural  stream,  he  would  have  had  no  right  to 
divert  the  current  issuing  from  the  mine,  so  as  to  deprive 
the  plaintiff  of  the  use  of  the  water  flowing  in  the  same, 
after  having  enjoyed  it  so  long.  Park,  B.,  in  illustrating 
the  doctrine  intended  to  be  laid  down  by  the  court,  sup- 
poses the  case  of  a  current  of  water  made  by  pumping  it 
from  a  mine  by  a  steam-engine.  Though  it  should  be  con- 
tinued for  twenty  years,  it  could  give  no  land-owner  who 
had  thereby  derived  a  benefit  from  the  flow  of  this  water 

24 


370  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

over  his  land  a  right  to  maintain  an  action  against  the 
miner  for  the  loss  of  this,  if  he  should  see  fit  to  stop  pump- 
ing. Another  illustration  was  that  of  a  land-owner  having 
the  benefit  of  the  water  flowing  from  his  neighbor's  eaves  for 
more  than  twenty  years,  the  owner  of  the  house  might,  nev- 
ertheless, take  down  the  house  and  stop  this  flow  at  any 
time.  "  The  nature  of  the  case,"  says  the  judge,  "distinctly 
shows  that  no  right  is  acquired  as  against  the  owner  of  the 
property  from  which  the  course  of  water  takes  its  origin, 
though,  as  between  the  first  and  subsequent  appropriator  of 
the  watercourse  itself,  such  a  right  may  be  acquired." 

4.  It  should  be  remarked  also,  that  while,  in  cases  like 
that  last  cited,  the  owner  of  the  land  over  which  the  water 
flows  would  have  no  right  to  divert  the  water,  since  to  him 
it  is,  as  to  the  riparian  proprietors  below,  as  a  natural  stream, 

it  would  not  be  competent  for  the  mine-owner, 
[*297]   though  he  *might  stop  it,  to  foul  or  corrupt  the 

same  to  the  injury  of  the  proprietors  upon  the 
stream.  To  that  extent,  if  suffered  to  flow,  it  had  the  in- 
cidents of  a  natural  stream,  even  as  against  the  one  who  had 
created  it.^ 

5.  The  case  of  Wood  v.  Waud,  above  cited,  presented  still 
other  features  as  to  the  rights  of  land-proprietors  upon  a 
stream  created  by  artificial  draining  of  mines.  The  plaintiff" 
and  defendant  each  had  mills  upon  a  small  natural  stream. 
A  part  of  the  supply  of  water  for  these  was  derived  from  two 
different  mines,  from  one  of  which  a  stream  had  flowed  for 
sixty  years,  by  means  of  an  artificial  outlet  dug  by  the  owner 
of  the  mine  for  the  purpose  of  draining  his  mine.  From  the 
other  mine  a  stream  of  water  flowed  which  was  caused  by 
pumping.  These  streams  flowed  through  separate  soughs 
into  the  natural  stream.  One  of  these  passed  underground 
through  the  defendant's  land,  before  reaching  the  plaintiff's 
land,  and  then  through  that  into  the  stream.     The  other  did 

1  Wood  V.  Wiiufl,  3  Exch.  748  ;  Magor  v.  Cliadwick,  11  Adolph.  &  E.  571  ; 
Sec  Wardle  v.  Brocklcluirst,  1  E.  &  Ellis.  1059. 


Sect.  4.]  RIGHTS   IN    ARTIFICIAL   WATERCOURSES.  371 

not  pass  tliroiigh  tliG  plaintiff's  land  at  all  before  reaching 
and  discharging  itsell"  into  the  stream. 

The  action  of  the  plaintiff  was  for  diverting,  or  improperly 
interfering,  by  the  defendant,  with  the  enjoyment  by  the 
plaintiff  of  the  water  flowing  from  these  soughs.  Whatever 
he  did  in  this  respect  was  done  by  him  upon  his  own  land, 
before  they  had  entered  and  united  with  the  waters  of  the 
natural  stream,  and  before  the  water  of  the  sough  that  run 
through  the  plaintiff's  land  had  reached  the  latter. 

The  court  held,  that,  if  the  mine-owner  had  seen  fit  to  stop 
the  supply  of  water,  or  divert  it,  so  that  the  water  from  the 
mines  should  no  longer  reach  the  works  of  the  mill-owners, 
he  would  not  have  been  liable  therefor,  adopting  the  doctrine 
of  Arkwright  v.  Gell.  As  between  the  plaintiff  and  defend- 
ant, no  prescription  had  been  set  up  or  relied  on,  on  either 
side ;  neither  had  any  right  to  complain  of  any  use 
which  *  the  other  should  make  of  the  water  in  his  [*298] 
own  land,  before  it  reached  that  of  the  other,  pro- 
vided he  did  not  foul  it,  or  turn  it  into  the  stream  heated,  so 
as  to  injure  the  party  below.  "  Each,"  in  the  language  of 
the  court,  "  may  take  and  use  what  passes  through  his  land, 
and  the  proprietor  below  has  no  right  to  any  part  of  that 
water  until  it  has  reached  his  own  land.  He  has  no  right  to 
compel  the  owners  above  to  permit  the  water  to  flow  through 
their  land  for  his  benefit,  and  consequently  he  has  no  right 

of  action  if  they  refuse  to  do  so If  they  polluted  the 

water  so  as  to  be  injurious  to  the  tenant  below,  the  case 
would  be  different."  But  as  soon  as  the  water  from  either 
of  these  soughs  had  become  united  with  that  of  the  natural 
stream  in  its  natural  watercourse,  it  partook  of  the  character 
and  incidents  of  a  natural  stream.  Pollock,  C.  B.,  in  giving 
the  opinion  of  the  court  in  the  above  case,  gives,  as  an  illus- 
tration of  the  doctrine  which  he  sustains,  the  case  of  a  drain 
made  througli  a  man's  land  for  agricultural  purposes,  which 
had  continued  for  twenty  years,  whereby  the  water  from  his 
own  land  was  discharged  upon  that  of  another.     Tliis  would 


372  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

not  give  a  right  in  the  latter  to  insist  upon  its  continuance, 
and  thereby  to  preclude  the  land-owner  from  altering  the 
level  of  his  drain  for  the  greater  improvement  of  his  land. 
"  The  state  of  the  circumstances  in  such  cases  shows  that 
one  party  never  intended  to  give,  nor  the  other  to  enjoy,  the 
use  of  the  stream  as  a  matter  of  right. ''^ 

The  above  case  makes  this  important  distinction  between 
the  right  of  a  lower  riparian  proprietor  to  water  flowing  in 
a  natural  stream,  and  to  that  created  and  flowing  in  an  arti- 
ficial one,  for  a  temporary  purpose,  that  in  the  former  case 
an  action  will  lie  for  its  diversion  by  an  upper  proprietor, 
although  done  in  his  own  land,  whereas  in  the  latter  case  no 
action  will  lie  for  the  diversion  of  the  water,  unless  the  same 
shall  have  reached  and  become  a  part  of  a  natural  stream. 
Such  diversion,  however,  as  appears  by  other  cases, 
[*299]  should  be  made  not  *  wantonly  or  maliciously,  but 
in  the  prosecution  of  some  legitimate  business. 

6.  The  case  supposed  by  Pollock,  C,  B.,  in  the  above  case, 
of  an  agricultural  drain,  arose  in  that  of  Greatrex  v.  Hay- 
ward,  in  1853,  and  is  fully  considered,  and  the  doctrine  by 
him  stated  is  fully  sustained.  It  was  further  held,  that  no 
length  of  enjoyment  of  what  was  designed  by  another  for  a 
temporary  use,  like  the  discharge  of  water  from  a  drain  de- 
signed for  such  a  use,  could  gain  for  the  recipient  a  pre- 
scriptive right  to  claim  it.  In  that  case  the  lands  of  the 
plaintiff  and  defendant  adjoined  each  other.  As  early  as 
1796  the  defendant  dug  a  drain  in  his  land,  through  which 
the  water,  as  it  collected  therein,  was  discharged  into  a  ditch 
of  the  plaintiff"  that  ran  along  near  the  defendant's  land,  and 
through  which  it  flowed  into  a  large  pit  in  the  plaintiff's 
land,  where  it  was  used  for  watering  his  cattle  and  other 
like  purposes.  In  1851  the  defendant  changed  the  mode  of 
draining  his  land,  whereby  the  water  from  the  same  escaped 
at  a  lower  level,  and  the  plaintiff  lost  the  benefit  of  its  accus- 
tomed flow.  And  for  this  he  brought  this  action.  The  court 
held  that  the  action  would  not  lie,  upon  the  grounds,  among 


Sect.  4.]  RIGHTS   IN   ARTIFICIAL   WATERCOURSES.  373 

others,  upon  which  the  cases  above  cited  were  determined. 
Alderson,  B.  says:  "  In  one  sense,  perhaps,  it  may  be  said, 
that  the  plaintiff  has  enjoyed  the  use  of  this  water  as  of 
right,  because  the  defendant  has  not  in  any  way  impeded 
such  use.  But  it  is  not  such  a  user  as  of  right  as  will  serve 
his  present  purpose,  for  there  has  been  no  adverse  user." 
Parke,  B. :  "  The  right  of  a  party  to  an  artificial  water- 
course, as  against  the  party  creating  it,  must  depend  upon 
the  character  of  the  watercourse  and  tlie  circumstances  un- 
der which  it  was  created.  This  watercourse  is  clearly  of  a 
temporary  nature  only,  and  is  dependent  upon  the  mode 
which  the  (iefendant  may  adopt  in  draining  his  land."  ^ 

7.  The  case  of  Magor  v.  Chadwick,  decided  in  the 
Queen's  *  Bench,  in  1840,  ought  to  be  noticed  in  [*300] 
this  connection,  because  of  certain  expressions  made 
use  of  by  Penman,  C.  J.,  in  giving  the  opinion  of  the  court, 
which  have  not  met  the  approbation  of  other  eminent  judges  ; 
and  the  doctrine  of  the  case  may,  at  least,  be  said  to  have 
been  modified,  if  not  overruled  by  later  cases.  The  water 
in  that  case  flowed  from  a  drain  originally  dug  by  the  owner 
of  a  mine  for  the  purpose  of  draining  the  same.  But  the 
mine  had  not  been  wrought  for  thirty  years.  The  adit  of 
the  underground  watercourse  was  in  land  which  did  not  be- 
long to  the  plaintiff.  The  plaintiff,  a  brewer,  cleared  out 
this  adit,  and  applied  the  water  to  the  use  of  his  brewery, 
although,  in  the  state  in  which  it  was  discharged  while  the 
mine  was  in  operation,  it  would  have  been  unfit  for  such  a 
use  ;  and  he  had  enjoyed  it  in  this  state  for  more  than 
twenty  years.  The  defendant  owned  a  mine,  other  than 
that  for  which  the  drain  was  originally  dug,  and,  in  order  to 
drain  it,  made  use  of  this  original  passage-way,  though  not 
claiming  any  right  to  do  so,  under  any  grant  or  title  from 
the  original  mine-owner,  but  doing  it,  first,  under  a  right  by 
usage  in  the  mining  regions  where  the  premises  were  situate, 
and  second,  on  the  ground  that  the  same  rules  did  not  apply 

1  Greatrex  v.  Havward,  8  Exch.  291. 


374  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

to  sucli  artificial  outlets  of  water  as  to  natural  watercourses. 
The  use  of  the  channel  as  a  drain  for  the  mine  fouled  the 
water,  so  that  the  plaintiffs  could  not  use  it.  Patteson,  J. 
instructed  the  jury,  "  That,  in  the  absence  of  custom,  artifi- 
cial watercourses  are  not  distinguished  in  law  from  such  as 
are  natural,  that  the  same  rules  apply  to  them,  and  that 
twenty  years'  enjoyment  might  therefore  warrant  the  jury  in 
finding  in  favor  of  the  right."  And  the  Chief  Justice,  in 
stating  the  opinion  of  the  court,  says :  "  The  imputed  misdi- 
rection is,  that  the  law  of  watercourses  is  the  same,  whether 
natural  or  artificial.     We  think  this  was  no  misdirection, 

but  clearly  right."  ^  • 

[*301]       *8.  As  applicable  to  the  case  under  consideration, 

where  the  defendant  did  not  justify  under  any  claim 
of  title  to,  or  ownership  of,  either  the  mine  drained  by  the 
watercourse,  or  the  land  in  which  it  had  its  adit,  the  ruling 
was  doubtless  correct.  But  the  broad  terms  in  which  it  was 
announced,  it  is  believed,  are  not  sustained  by  later  and  bet- 
ter-considered cases.  The  court,  in  Wood  v.  Waud,  above 
cited,  take  this  distinction,  and,  moreover,  the  distinction 
there  is  between  diverting  water  and  fouling  it,  which  do  not 
stand  upon  the  same  ground  in  law,  and  add  :  "  The  general 
proposition,  that  under  all  circumstances  the  right  to  water- 
courses arising  from  enjoyment  is  the  same,  whether  they  be 
natural  or  artificial,  cannot  possibly  be  sustained." 

The  reader  will  observe,  that  it  is  not  assumed  that  pre- 
scriptive rights  may  not  be  acquired  in  artificial  water- 
courses, under  some  circumstances,  but  it  is  properly  de- 
nied that  the  law,  in  respect  to  acquiring  these,  is  the  same 
in  all  respects  as  it  is  as  to  similar  rights  in  the  water  of  nat- 
ural streams.  And  Crowder,  J.,  in  Sampson  v,  Hoddinott, 
commenting  upon  the  case  of  Magor  v.  Chadwick,  says  : 
"  That  case  has  been  considered  not  altogether  satisfactory, 
and  it  is  inconsistent  witii  Arkwright  v.  Gell."  And  Cross- 
well,  J.,  in  the  same  case,  in  referring  to  the   distinction 

1  Mii{,'or  V.  Cluulwick,  11  Adolpli.  &  E.  571. 


Sk(t.  4.]  EIGHTS   IN   ARTIFICIAL   WATERCOURSES.  375 

there  is,  in  point  of  law,  between  an  artificial  drain  and  a 
natural  stream,  says:  "All  authorities,  from  the  Digest 
downwards,  show  that  there  is."^ 

9.  The  question,  how  far  an  easement  can  be  acquired  in 
an  artificial  watercourse  by  one  not  owning  the  land  through 
which  it  is  constructed,  was  raised  in  Beeston  v.  Weate,  in 
the  Queen's  Bench  in  1856.  In  that  case  the  defendant 
owned  a  piece  of  land  between  that  of  the  plaintiff  and  a  nat- 
ural stream  which  ran  along  by  the  side  of  the  defendant's 
land.  From  this  stream  there  was  an  artificial  channel 
cut  through  the  defendant's  land  to  the  land  of  the 
*plaintiff,  and  by  putting  sods  in  the  stream  the  [*302] 
water  thereof  would  flow  into  this  channel,  and, 
when  not  used  by  the  defendant  for  irrigating  his  interme- 
diate land,  would  reach  that  of  the  plaintitf,  where  it  was 
made  use  of  by  him  for  watering  his  cattle  and  the  like. 
The  owners  of  the  plaintiff's  land  had  been  accustomed  to 
place  this  dam  of  sods  in  the  stream  whenever  they  desired 
the  water,  and  had  thereby  enjoyed  the  use  of  it,  except  at 
the  times  when  the  defendant  saw  fit  to  apply  it  in  irrigating 
his  land,  which  was  a  right  prior  to  that  of  the  plaintiff.  In 
this  state  of  things,  the  defendant  removed  the  dam  of  sods 
altogether  from  the  stream,  and  thereby  wholly  deprived  the 
plaintiff  of  the  water.  In  the  hearing  of  the  case,  the  de- 
fendant insisted  that  the  artificial  trench  being  in  his  own 
land,  for  liis  own  use,  the  plaintiff  could  not  acquire  an  ease- 
ment therein  by  user,  to  draw  water  therefrom  for  the  use  of 
his  land.  Lord  Campbell,  C.  J.,  however,  while  approving 
the  cases  of  Arkwright  v.  Gell,  Wood  v.  Waud,  <fec.,  said  : 
"  We  do  not  consider  that  the  cases  lay  down  any  such  rule 
as  that  enjoyment  and  acts,  which,  without  the  existence  of 
the  easement,  would  be  tortious  and  actionable,  may  not  be 
evidence  of  the  right  to  the  use  of  water,  although  it  flows 

in  an  artificial  cut In  the  cases  referred  to,  regard 

was  had  to  the  water  being  obtained  artificially  by  the  owner 

^  Sampson  v.  Hocldinott,  1  C.  B.  n.  s.  590, 


376  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

of  the  servient  tenement,  rather  than  to  the  water  running 
through  an  artificial  cut If  it  were  not  that  the  occu- 
pier of  the  servient  tenement  lias  himself  used  the  water 
flowing  through  the  artificial  cut  for  irrigation,  no  plausible 
objection  could  be  made  to  the  easement  which  the  plaintiff 
claims,  and  we  do  not  see  that  the  use  of  the  water  on  the 
servient  tenement  takes  away  from  the  effect  of  the  use  of  it 
for  the  dominant  tenement,  regard  being  had  to  the  posi- 
tive acts  done  by  the  occupier  of  the  dominant  tenement 
for  the  purpose  of  enjoying  the  easement."  The  court, 
moreover,  held,  that  the  evidence  showed  that  the  artificial 
cut  was  not  originally  made  for  a  temporary  purpose, 
[*303]  *excluding  the  case  from  the  principle  of  some  of 
those  above  cited.  And  it  was  held,  that  the  plain- 
tiff was  entitled  to  recover  for  this  interruption  of  his  right 
to  enjoy  the  water. ^ 

In  illustrating  some  of  the  positions  taken  in  the  above 
case,  the  Chief  Justice  puts  the  case  of  water  for  a  mill 
turned  by  a  weir  across  a  stream  in  a  leat  through  the  land 
of  another  to  a  mill,  and  after  being  used  there  returned 
into  the  natural  stream  again,  where  the  mill-owner  has 
been  accustomed  to  go  upon  the  land  of  the  intermediate 
land-owner  and  clear  the  leat  whenever  there  was  occasion 
therefor,  or  repair  the  banks  thereof,  long  enough  to  ac- 
quire, so  far  as  time  was  concerned,  a  prescriptive  right. 
"  We  conceive,"  says  he,  "  that  the  right  to  do  so  might  be 
established,  and  that  an  obstruction  to  the  flow  of  water 
through  the  mill  hat  would  be  actionable." 

10.  It  was  accordingly  held,  in  Baer  v.  Martin,  that  a  right 
in  one  man  to  convey  water  through  the  land  of  another, 
by  a  race  to  the  mill  of  the  former,  was  an  incorporeal  he- 
reditament, and,  if  the  same  were  obstructed,  an  action  of 
trespass  quare  clausum  as  to  a  corporeal  hereditament  would, 
not  lie. 2 

1  Becston  v.  Weate,  5  Ellis  &  B.  986.     See  Watkins  v.  Peck,  13  N.  H.  360, 
3  70,  sustaining  a  similar  doctrine. 
'^  Baer  v.  Martin,  8  Blackf.  317. 


Sect.  4.],  RIGHTS   IN   ARTIFICIAL   WATERCOURSES.  377 

11.  Rights  like  those  indicated  by  Lord  Cami)bcll,  in  re- 
spect to  entering  upon  the  land  througli  whicli  an  artificial 
watercourse  conducts  water  to  or  from  a  mill,  and  clearing 
or  repairing  the  same,  may  be  acquired  by  user  by  the  mill- 
owner  of  such  watercourse,  although  he  may  never  have 
had  occasion  before  to  do  such  acts,  as  has  been'  decided  in 
several  of  the  American  courts.  One  of  these  is  Prescott  v. 
White,  where  there  was  an  artificial  race-way  from  an  an- 
cient mill  through  another's  land,  whereby  the  water  of  such 
mill  was  discharged  into  the  natural  stream  below.  It  was 
held  that  the  mill-owner  might  enter  upon  such  land  and 
clear  the  channel  if  necessary,  though  he  had  never 
*done  so  before,  doing  only  what  was  customary  in  [*304] 
like  cases,  on  the  broad  ground  that,  having  an  ease- 
ment of  discharge  of  water  through  another's  land,  he  had, 
as  incident  thereto,  the  means  of  keeping  the  same  in  repair 
and  fit  for  use.  In  doing  this,  however,  he  must  exercise  all 
reasonable  care  to  do  no  unnecessary  injury  to  the  land- 
owner ;  and  where  stones  had  fallen  from  the  wall  of  the 
race-way,  he  was  bound  to  replace  them  upon  the  wall,  and 
if  the  earth  had  fallen  from  the  banks  into  the  watercourse, 
he  was  bound  to  replace  it  again  upon  the  bank  for  the  own- 
er to  use  if  he  saw  fit ;  and,  if  not  fit  for  use,  the  mill- 
owner  must  remove  the  materials  in  a  reasonable  time,  in  a 
manner  least  prejudicial  to  the  land-owner.  And  if  the  mill- 
owner's  land  adjoined  such  watercourse  on  one  side  of  it,  he 
must  make  use  of  that  for  the  deposit  of  such  material  taken 
therefrom  which  is  not  useful  for  the  land-owner.  These 
rules  are  applicable  to  cases  where  the  mode  of  clearing  or 
repairing  such  watercourse  has  not  been  fixed  by  grant  or 
prescriptive  use.^ 

A  similar  doctrine  is  declared  in  several  cases,  as  being 
applicable  to  the  case  of  entering  upon  and  clearing  a  natu- 

1  Prescott  V.  White,  21  Pick.  341.  See  also  Darlington  v.  Painter,  7  Penn. 
St.  473 ;  Brisbane  v.  O'Neall,  3  Strobh.  343 ;  Kauffnian  v.  Grieseraer,  26  Penn. 
St.  407,  413. 


378      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

ral  watercourse  flowing  from  a  mill  through  another's  land. 
The  court  in  one  case  call  it  "  a  natural  easement  in  the 
land  below,"  and  consider  it  as  belonging  to  a  mill,  "  inde- 
pendently of  any  right  acquired  by  compact  or  by  prescrip- 
tion." 1 

How  far  it  is  strictly  proper  to  speak  of  that  as  an  "  ease- 
ment" which  is  neither  acquired  by  compact  nor  prescrip- 
tion, but  belongs  intrinsically  to  the  estate  with  which  it  is 
used,  is  referred  to  in  another  part  of  this  work,^  and 
[*305  is  *  again  alluded  to  here  chiefly  for  illustrating  the 
extent  of  the  doctrine  how  far  an  easement  may  be 
acquired  in  watercourses  that  are  strictly  artificial. 

12.  By  following  out  the  illustrations  adopted  by  the  Eng- 
lish courts  in  treating  of  rights  which  may  be  acquired,  by 
enjoyment,  in  watercourses  artificially  created  for  temporary 
purposes,  considerable  has  been  said  which  properly  belongs 
to  the  second  division  of  the  subject,  which  relates  to  ease- 
ments which  may  be  acquired  in  or  by  artificial  watercourses 
supplied  from  natural  sources  and  designed  for  permanent 
use.  And  here,  again,  when  treating  of  these,  the  reader 
will  find  cases  cited  which  might  seem  more  properly  appli- 
cable to  the  rights  which  mill-owners  or  others  may  acquire 
and  enjoy  in  natural  streams.  But  the  reason  for  this  will 
be  perceived  in  the  analogy  which  the  courts  apply  in  similar 
cases  between  natural  and  artificial  watercourses. 

Thus  it  may  be  stated,  in  general  terms,  that  one  may  ac- 
quire an  easement  to  discharge  water  upon  the  land  of  an- 
other, pure  or  foul,  as  the  user  may  have  been,  by  an  arti- 
ficial channel  or  pipe,  or  by  having  the  water  from  the  eaves 
of  his  house  fall  upon  his  neighbor's  land.^ 

The  Chancellor,  in  the  case  of  Earl  v.  De  Hart,  above 

1  Prescott  V.  Williams,  5  Mete.  429  ;  Kauffman  v.  Griescmer,  26  Penn.  St. 
413;  Gary  v.  Daniels,  5  Mete.  236;  Grittcnton  v.  Alger,  11  Mete.  281. 

2  Ante,  chap.  3,  sect.  1,  pi.  10. 

3  2  Washb.  Real  Prop.  68  ;  Wright  v.  Williams,  1  Mees.  &  W.  77,  78  ;  Ash- 
ley 7'.  Ashley,  6  Gush.  70  ;  Garlyon  v.  Lovcring,  1  Hurlst.  &  N.  784,  798 ;  Earl 
V.  De  Hart,  1  Bcasley,  280,  28.5. 


Sect.  4.]  RIGHTS  IN  ARTIFICIAL   WATERCOURSES.  379 

cited,  ill  relation  to  a  channel  by  wliich  water  had  been  dis- 
charged from  the  plaintiff's  land,  uses  this  language  :  "  It 
makes  no  difference  whether  it  is  a  natural  watercourse  or 
an  artificial  ditch.  If  it  is  a  mere  ditch,  and  the  complain- 
ant's land  has  enjoyed  the  use  of  it  for  more  than  twenty 
years,  and  as  an  adverse  right,  then  it  is  an  easement  which 
the  owner  of  the  complainant's  land  has  in  that  of  the  de- 
fendant's ;  it  is  a  privilege,  without  a  profit,  and  is  as  much 
the  subject  of  protection  as  a  natural  watercourse."  ^ 

*13.  In  the  case  of  Watkins  v.  Peck,  the  water-  [*306] 
course  under  consideration  was  from  a  natural 
spring,  and  in  treating  of  the  rights  which  had  been  gained 
by  several  therein,  the  court  lay  down  the  broad  doctrine 
that  the  adverse  use  of  the  water  of  an  artificial  aqueduct 
for  twenty  years  gains  thereby  a  right  to  the  enjoyment 
thereof,  in  the  same  manner  and  to  the  same  extent  as 
would  have  been  the  case  if  the  water  had  flowed  in  a 
natural  channel.^ 

So  in  Pennsylvania,  where  it  seems  an  executed  license  is 
not  revocable,  A  gave  B  permission  to  erect  a  dam  on  A's 
land,  by  which  to  turn  the  water  of  a  stream  upon  B's  land, 
through  a  channel,  for  the  purpose  of  irrigating  B's  meadow  ; 
and  B  for  twenty  years  had  watered  his  cattle  at  the  artificial 
watercourse,  when  A  began  a  business  upon  his  own  land  by 
which  he  fouled  the  waters  running  therein,  so  that  the 
cattle  could  not  drink  it.  It  was  held,  that  by  this  user  and 
enjoyment  B  had  acquired  an  easement  to  have  his  cattle 
supplied  with  pure  water  by  such  watercourse.  It  was  held, 
in  the  same  case,  that  one  having  a  watercourse  in  his  own 
land  may  conduct  the  water  thereof  wherever  he  pleases 
upon  his  land,  if  he  do  not  materially  diminish  the  quantity 
to  which  others  below  him  are  entitled.  And  if,  while  so 
managing  the  water,  another  were  to  interfere  with  the 
water  flowing  therein,  to  the  injury  of  such  land-owner,  he 

1  Earl  V.  De  Hart,  1  Beasley,  280,  285. 

2  Watkins  v.  Peck,  13  N.  H.  360,  370.     See  Elliott  v.  Rhett,  5  Rich.  405. 


380  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

would  be  liable  for  such  interference  in  the  same  manner  as 
if  the  watercourse  had  been  a  natural  one.^ 

In  California,  in  order  to  encourage  mining,  if  one  digs 
a  ditch  for  that  purpose,  for  conducting  water  to  a  mine,  he 
acquires  the  exclusive  right  to  control  the  waters  flowing 
therein,  without  being  liable  to  have  the  same  obstructed  or 
diverted  by  other  ditches  ;  and  under  this  rule  it  was 
[*307]  *held  that  a  miner  might  avail  himself  of  a  dry 
ravine  for  the  purposes  of  an  artificial  ditch,  with 
all  the  rights  he  would  have  if  excavated  by  art.^ 

14.  It  should,  however,  be  stated,  that,  as  understood  in 
England  and  most  of  the  States,  a  parol  license  to  con- 
struct a  watercourse  in  one's  land  is  revocable,  and  no  title 
is  thereby  gained  either  to  the  land  or  to  any  right  to  main- 
tain the  watercourse.  An  enjoyment  under  such  a  license 
would  neither  be  by  grant  nor  adverse  user.^ 

15.  Under  a  statute  passed  in  1840,  giving  the  Supreme 
Court  jurisdiction  in  "  all  actions  respecting  easements  on 
real  estate,"  the  courts  of  Massachusetts  have  had  occasion 
several  times  to  consider  cases  of  what,  as  above  explained, 
have  been  called  "natural  easements"  in  watercourses,  in 
which  it  became  necessary  also  to  treat  indirectly  of  the  law 
of  easements  in  artificial  watercourses.  In  one  of  these  the 
question  raised  was,  whether  the  right  which  a  mill-owner 
has  to  have  the  water  flow  freely  from  his  mill  through  the 
land  of  a  lower  proprietor  in  the  natural  stream,  was  an 
easement.  It  was  held  under  the  statute  that  it  was.  The 
court  make  a  distinction  between  the  right  to  have  water 
flow  over  one's  own  land  and  over  the  land  of  another,  in 
these  words :  "  The  right  which  a  party  has  to  the  use  of 

1  Wheatley  v.  Chrisniaa,  24  Venn.  St.  298,  303,  304.  See  Ford  v.  Whitlock, 
27  Vt.  26.5. 

2  Hoffman  v.  Stowc,  7  Cal.  46. 

^  Hewlins  v.  Shippam,  .5  Barnevv.  &  C.  221  ;  Fentiman  v.  Smith,  4  East, 
107  ;  Coclicrv.  Cowper,  1  Crompt.  M.  &  R.  418;  1  Washb.  Real  Prop.  399; 
Mumford  v.  Whitney,  15  Wend.  380;  Cook  ».  Stearns,  11  Mass,  533  ;  Samp- 
son V.  Biirnside,  13  N.  II.  264. 


Sect.  4.]  RIGHTS   IN   ARTIFICIAL   WATERCOURSES.  381 

water  flowing  over  his  own  land  is  undoubtedly  identified 
with  the  realty,  and  is  a  real  or  corporeal  hereditament,  and 
not  an  easement.  But  the  right  of  a  party  to  have  the  water 
of  a  stream  or  watercourse  flow  to  or  from  his  lands  or  mill, 
over  the  land  of  another,  is  an  incorporeal  hereditament, 
and  an  easement  or  a  prandial  service,  as  defined  by  the 
civil  law.  And  it  is  immaterial  whetlier  the  watercourse  be 
natural  or  artificial,  or  whether  the  right  is  derived 
ex  jure  *natur(c  or  by  grant  or  prescription.  It  [*308] 
seems,  however,  that  the  right  to  receive  the  flow  of 
water  and  transmit  it  over  the  land  of  another,  although  a 
natural  easement,  not  beginning  by  grant  or  assent  of  par- 
ties, may  be  claimed  by  prescription."  ^ 

This  language,  cited  from  the  case  last  named,  was  adopted 
in  Crittenton  v.  Alger  ;  ^  and  the  doctrine  was  reaffirmed  in 
Ashley  v.  Ashley,'^  that  "  the  right  which  the  plaintiff  claims, 
to  have  the  water  from  his  land  run  by  the  ancient  water- 
course over  the  defendant's  land,  is  an  easement." 

This  right  in  a  mill-owner  to  discharge  water  upon  an- 
other's land  is,  in  one  sense,  something  so  different  from 
that  which  one  land-owner,  as  such,  may  claim  to  have  the 
water  flowing  through  his  own  land  discharged  upon  that  of 
the  next  proprietor  below,  that  it  may  well  be  called  an 
easement,  so  far  as  it  respects  the  upper  estate,  and  a  ser- 
vitude in  respect  to  the  lower  one,  since  it  changes  mate- 
rially the  manner  and  extent  of  using  the  waters  of  the 
stream,  in  stopping  them  altogether,  or  discharging  them 
in  unusual  quantities,  instead  of  suffering  them  to  flow  in 
their  accustomed  current  along  the  channel.  But  it  is, 
after  all,  an  easement  of  a  most  peculiar  character.  No 
unity  of  possession  of  the  upper  and  lower  estates,  though 
dominant  and  servient,  destroys  it  as  an  easement,  as  in 
ordinary  cases.     But  it  survives  to  the  mill-owner  the  mo- 

1  Gary  v.  Daniels,  5  Mete.  236,  238. 

2  Crittenton  v.  Alger,  1 1  Mete.  284. 

3  Ashley  v.  Ashley,  6  Ciish.  70. 


382  THE    LAW   OF   EASEMENTS   AND    SERVrrUDES.         [Cii.  III. 

ment  the  two  estates  are  again  owned  in  severalty,  whether 
there  is  any  express  grant  or  reservation  made  of  the  stream 
or  not.i 

16.  How  far  a  right  thus  to  discharge  water  from  a  mill 
by  an  artificial  channel  may  be  said  to  be,  in  all  re- 
[*309]  spects,  *like  that  by  a  natural  one,  it  may  not  be  im- 
portant to  inquire,  as  it  is  well  settled  that  such  a 
right  would  pass  with  the  mill,  by  implication,  in  a  grant 
thereof.^ 

And  yet,  to  prevent  misapprehension  in  the  use  of  terms, 
it  would  seem  that  when  the  court,  in  the  cases  above  cited, 
say,  "  It  is  immaterial  whether  the  watercourse  be  natural 
or  artificial,  or  whether  the  right  is  derived  ex  jure  naturce 
or  by  grant  or  prescription,"  when  applied  to  the  right  of 
one  land-owner  to  have  the  water  flow  to  or  from  his  land, 
from  or  to  that  of  another,  their  language  must  have  related 
to  cases  like  those  then  under  consideration. 

Blackstone  says :  "  A  prescription  cannot  be  for  a  thing 
which  cannot  be  raised  by  grant,  for  the  law  allows  prescrip- 
tion only  in  supply  of  the  loss  of  a  grant,  and  therefore  pre- 
supposes a  grant  to  have  existed."  ^  But  it  is  difficult  to 
conceive  that  water  ever  began  to  flow  from  a  higher  to  a 
lower  level  along  the  surface  of  the  earth,  by  permission  or 
grant  of  the  lower  proprietor.  While  it  is  easy  to  under- 
stand that  a  right  to  change  and  control  the  mode  in  which 
it  should  flow,  by  acts  of  one  owner  upon  his  land,  like  stop- 
ping it,  and  then  suffering  it  to  flow  again  to  the  injury  of 
another,  might  have  originally  been  the  result  of  compact 
between  them. 

And  in  Sury  v.  Pigot,  Whitlock,  J.  says :  "  In  our  case 

1  Saunders  ?'.  Newman,  1  Barnew.  &  Aid.  2.58;  Sury  v.  Pigot,  Popli.  166; 
Tyler  v.  Wilkinson,  4  Mason,  395  ;  Hazard  v.  Robinson,  3  Mason,  272  ;  Brown 
V.  Best,  1  Wils.  174  ;  Wood  v.  Waud,  3  Exch.  748,  776.  And  Turker  v.  Jew- 
ett,  11  Conn.  311,  322,  where  the  point  is  examined  at  length. 

•■^  New  Ipswich  W.  L.  Co.  v.  Batchelder,  3  N.  H.  190;  2  Washb.  Real  Prop. 
37  ;  Johnson  v.  Jordan,  2  Mete.  234,  240. 

3  2  Blackst.  Com.  2G5. 


Sect.  4.]  RIGHTS  IN   AKTIITCIAL   WATERCOURSES.  383 

the  watercourse  doth  not  begin  by  consent  of  parties,  nor  by 
prescription,  but  ex  jure  naiurce,  and  therefore  shall  not  Ijc 
extinguished  by  unity  of  possession.  So  it  was  early  laid 
down,  that  if  one  have  a  mill,  and  sue  for  a  diversion  of  the 
wat%r  therefrom,  if  it  be  upon  his  own  land  and  upon  a 
natural  stream,  he  need  not  allege  it  to  have  been  an  an- 
cient mill.  But  if  he  claims  the  water  by  prescription,  he 
must  allege  his  mill  to  be  an  ancient  one,  in  order  to  re- 


cover 


"  1 


*So  Story,  J.,  in  Hazard  v.  Robinson,  says  :  "  He   [*310] 
took  the  distinction  that,  where  a  thing  hath  its  be- 
ing by  prescription,  unity  will  extinguish  it,  but  where  the 
thing  hath  its  being  ex  jure  naturce,  it  shall  not  be  extin- 
guished." 2 

17.  While  it  can  hardly  be  proper  to  speak  of  water  rights 
belonging  to  mills  ex  jure  naturae,  or  of  the  right  to  the 
natural  flow  of  a  stream  as  one  of  prescription,  it  was  un- 
doubtedly correct  to  consider  these  embraced,  under  the 
statute,  in  the  category  of  "  easements  on  real  estate,"  and 
that  watercourses,  though  originally  artificial,  when  once 
created  by  grant  or  prescription  and  applied  to  purposes  of 
art,  or  as  a  means  of  enjoying  the  use  of  water,  have  most 
if  not  all  the  incidents  and  rights  of  natural  watercourses 
attached  to  them. 

This  is  illustrated  by  the  case  of  Townsend  v.  M'Donald. 
There  three  owners  of  land,  through  which  ran  a  natural 
watercourse,  made  division  thereof  in  reference  to  enjoy- 
ing the  power  of  the  water,  by  erecting  a  dam  across  the 
same,  above  their  land,  for  raising  a  pond  of  water,  and 
from  this  artificial  channels  were  cut,  through  the  three 
parts  into  which  the  land  was  divided,  to  the  river  below, 
for  working  mills  standing  upon  these  several  parcels.  It 
was  held  that,  in  the  mode  and  extent  of  using  these  arti- 
ficial streams  through  their  respective  lands,  the   owners 

1  Palins  V.  Heblethwait,  Skinn.  65  ;  Luttrell's  case,  4  Rep.  86. 

2  Hazard  v.  Robinson,  3  Mason,  272,  277. 


384  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

of  the  several  parcels  were  to  be  governed  by  the  same 
rules  as  they  would  have  been  had  each  been  a  natural 
stream.^ 

The  case  of  Hurd  v.  Curtis  may  be  referred  to  in  the 
same  connection,  though  perhaps  less  positive  in  the  state- 
ment of  the  doctrine  above  proposed  than  might  have  been 
desirable.  In  that  case  a  single  mill-privilege,  sufficient  for 
six  paper-mill  powers  and  one  fulling-mill  power,  belonging 
in  common,  was  divided  by  indenture,  whereby  the 
[*311]  owner  *of  the  fulling-mill  power  was  "to  use  the 
water  at  all  times  without  preference,"  all  the  rights 
mentioned  being  considered  "  first  rights."  This  "  fulling- 
mill  right "  was  not,  in  terms,  annexed  to  any  particular 
mill  or  mill-site,  and  it  was  accordingly  held  that  it  might 
be  applied  at  any  convenient  site,  provided  no  increased  bur- 
den was  imposed  for  race-ways  or  otherwise  upon  the  other 
proprietors  of  the  common  supply  of  the  several  mills.  The 
one  to  whom  it  was  assigned  had  already  applied  it  to  oper- 
ate a  mill  upon  his  own  land  by  means  of  an  artificial  canal 
across  the  same  in  which  the  water  flowed  to  his  mill. 

After  this,  he  conveyed  the  intermediate  land  through 
which  this  canal  passed,  but  made  no  reservation  of  any 
right  to  maintain  this  channel  and  flow  of  water.  But  the 
court  incline  to  the  opinion  that,  here  being  a  mill  in  opera- 
tion, carried  by  water  flowing  in  this  open  channel,  would 
raise  a  reservation,  by  implication,  of  a  right  to  maintain  it, 
and  that  the  owner  of  the  land  could  no  more  obstruct  it 
than  if  it  had  been  a  natural  watercourse.^ 

And  a  similar  doctrine  was  more  definitely  declared  in 
Frey  v.  Witman,  where  the  owner  of  land  on  both  sides  of  a 
natural  stream  erected  a  dam  thereon,  and  excavated  an 
artificial  canal  from  the  same  along  the  bank  of  the  stream, 
to  a  mill  below  the  dam,  whereby  the  water  of  the  stream 

1  Townsend  v.  M'Donalil,  14  Barb.  460 ;  Buddington  v.  Bradley,  10  Conn. 
213. 

-  Ilurd  V.  Curtis,  7  Mctc.  94. 


Sect.  4.]  RIGHTS   IN   ARTIFICIAL   WATERCOURSES.  385 

was  turned  from  its  original  channel,  and  flowed  in  this  arti- 
ficial one.  He  then  sold  the  intermediate  land  to  another, 
and,  among  other  things,  subsequently  stopped  certain  leaks 
in  the  dam,  by  which  a  part  of  the  water  in  the  pond  had 
escaped  and  flowed  down  the  original  channel.  It  was  held 
that  the  purchaser  of  the  land  had  no  remedy  for  continuing 
this  diversion,  since  lie  must  have  known,  when  he  took  his 
deed,  that  the  grantor  did  not  intend  to  destroy  his  mill,  and 
that  it  could  only  be  carried  on  by  continuing  to  di- 
vert the  natural  stream  into  this  artificial  *one,  and  [*312] 
that  the  stopping  of  the  leaks  was  but  a  part  of  the 
reserved  right  to  maintain  the  diversion.^ 

An  instance  of  the  rights  of  a  proprietor  of  a  natural 
stream  to  the  flow  of  the  water  therein  attaching  to  an  arti- 
ficial one,  was  this.  The  plaintiff  was  lessee  of  a  mill  which 
stood  some  distance  from  the  bank  of  the  stream  upon 
the  lessor's  land,  and  was  carried  by  water  taken  from  the 
stream  in  A's  land  above  the  mill  by  a  trench,  and  through 
the  land  of  the  plaintiff's  lessor  who  had,  by  an  agreement 
with  A,  cut  this  trench  for  the  purposes  of  this  mill.  The  de- 
fendant, at  a  point  above  A's  land,  diverted  the  water  of  the 
stream  to  the  plaintiff's  injury.  And  it  was  held,  that  as  to 
this  trench  and  the  water  flowing  in  it,  the  plaintiff  had  the 
rights  of  a  riparian  proprietor.  And  one  of  the  Barons  held, 
generally,  that  a  riparian  owner  may  grant  the  flow  of  water 
in  a  stream  to  one  who  is  not  a  riparian  proprietor,  to  be 
used  on  the  premises  of  the  latter,  which  a  higher  proprietor 
may  not  disturb  by  diverting  it.^ 

18.  Without  intending  to  resume  the  discussion,  how  far 
the  granting  of  one  of  several  tenements  creates  an  easement 
or  servitude  in  either,  by  implication,  it  may  be  proper  to 
refer  in  this  connection  to  a  few  more  cases  which  go  to  illus- 
trate the  extent  to  which  an  artificial  watercourse,  when  once 
created  and  attached  to  another,  as  a  principal  estate,  be- 

1  Frey  v.  Witman,  7  Penn.  St.  440. 
'^  Nuttall  V.  Bran  well,  L.  R.  2  Exch.  1. 
25 


386  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

comes  like  unto,  or  identical  with,  a  natural  one,  in  respect 
to  the  rules  by  which  its  ownership  is  governed.  Thus  in 
Pheysey  v.  Yickary,  Parke,  B.,  in  speaking  of  wliat  ease- 
ments would  or  would  not  be  extinguished  by  unity  of  seizin 
and  possession  of  the  dominant  and  servient  estates,  says  : 
"  If  it  is  necessary  to  the  safety  of  a  house  that  water  should 
flow  down  a  drain,  the  right  of  a  watercourse  through  it  is 
reserved,  by  implication,  in  every  grant  of  a  house."  ^ 

But  the  terms  in  which  the  artificial  watercourse  is  created 
are  to  be  regarded  in  determining  the  extent  and  mode  of  its 
use.  Thus  in  Lee  v.  Stevenson,  the  plaintiff  leased  certain 
premises  to  the  defendant,  and  therein  reserved  the  right  to 
lay  a  covered  drain  through  these  premises  in  order  to  drain 
his  other  estate  to  a  certain  point.  The  defendant,  after  it 
had  been  constructed,  opened  a  drain  from  the  leased  prem- 
ises into  this  drain.  But  as  the  drain  was,  by  its  terms,  to 
be  for  the  use  of  the  plaintiff's  other  premises,  the  court  held 
there  was  no  implied  right  granted  of  making  use  of  it  for 
the  defendant's  convenience.  Although,  had  the  right  which 
the  plaintiff  reserved  to  himself  been  general,  to  drain  his 
premises  across  those  of  the  defendant,  it  would  not  have 
given  him  such  exclusive  right,  but  the  same  might  have 

been  used  by  the  defendant.'-^ 
[*313]  *19.  Upon  the  principle  that  an  artificial  water- 
course may  acquire  the  incidents  and  qualities  of  a 
natural  one,  it  was  early  held  that,  if  the  owner  of  an  estate 
in  fee,  upon  which  there  was  a  dwelling-house  and  spring  of 
water,  wore  to  lay  aqueduct  pipes  from  the  spring  to  the 
house,  for  supplying  the  latter  with  water,  and  should  sell 
the  house  without  the  land,  or  the  land  without  the  house, 
the  right  of  the  aqueduct  would  in  the  one  case  pass,  and  in 
the  other  be  reserved,  by  the  grant,  as  an  easement  incident 
to  the  house  as  the  dominant  estate.^ 

1  Pheysey  v.  Vickary,  16  Mces.  &  W.  484. 

2  Lcc  V.  Stevenson,  1  Ellis,  B.  &  E.  512. 

3  Nicholas  v.  Chanihurliiin,  Cro.  Jac.  121  ;  Pyer  v.  Carter,  1  Ilurlst.  &  N. 
916  ;  Sury  v.  Pigot,  Vu\)\\.  IGG  ;  Lanipman  v.  Milks,  21  N.  Y.  505  ;  Seymour  v. 
Lewis,  13  N.  J.  443. 


Sect.  4.]  RIGHTS  IN   ARTIFICIAL   WATERCOURSES.  387 

But  ill  one  respect  tlicy  are  not  identical,  for,  if  the  two 
estates  were  to  become  again  united  in  one  owner,  and  he 
were  to  cut  off  the  aqueduct  from  the  house,  and  were  to 
sell  the  same  in  that  state,  it  would  not  carry  the  right  to 
the  aqueduct,  being  an  easement,  and  not  a  natural  or  ne- 
cessary right.^ 

20.  A  land  proprietor  may  restrict  himself  by  grant  or 
covenant  from  changing  the  course  of  a  stream  through  his 
land ;  ^  and  after  suffering  the  water  to  flow  through  his 
land  in  a  new  channel  for  twenty  years,  he  cannot  change  it 
to  the  injury  of  mill-owners  below,  or  of  ripai-ian  proprietors 
above,  who  have  enjoyed  the  benefit  of  its  flowing  in  such 
artificial  watercourse.-^ 

The  case  of  Hall  v.  Swift  is  one  where  a  corresponding 
right  to  receive  the  water  upon  his  land  by  a  new  and  arti- 
ficial channel  was  held  to  be  properly  exercised  by  a  land- 
owner, so  that  a  proprietor  above  him  might  not  interfere 
therewith.  The  stream  in  that  case  was  a  small  one,  and, 
after  leaving  the  defendant's  land,  its  natural  course 
was  *into  a  narrow  lane,  which  separated  the  defend-  [*314] 
ant's  and  plaintiff's  lands  ;  after  running  a  short  dis- 
tance along  this  lane,  it  turned  into  the  plaintiff's  land.  The 
plaintiff  changed  its  place  of  entering  his  land,  so  that  it  run 
directly  across  this  lane  from  where  it  left  the  defendant's 
land.  After  this  it  ceased  to  flow  at  all  for  many  years,  but 
began  again,  and  had  flowed  in  this  new  channel  for  nine- 
teen years,  when  the  defendant  obstructed  it.  In  an  action 
for  such  obstruction,  it  was  held  that  the  plaintiff's  right  to 
have  the  water  flow  in  this  artificial  channel  was  the  same  as 
if  it  had  been  the  natural  one,  and  that  he  had  lost  no  right 
to  insist  upon  the  then  present  flow  of  the  water  by  reason  of 
its  having  been  suspended.* 

1  Snry  v.  Pigot,  Poph.  172;  s.  c,  Palm.  446,  citing  Lady  Browne's  case  ; 
Robins  v.  Barnes,  Hob.  131. 

2  Northum  v.  Hurley,  1  Ellis  &  B.  665  ;  Townsend  v.  M'Donald,  14  Barb.  460. 
^  Belknap  v.  Trimble,  3  Paige,   577,  605  ;  Dclaney  v.  Boston,   2  Ilarringt. 

489,491. 

*  Hall  V.  Swift,  6  Scott,  167 ;  s.  c,  4  Bing.  N.  C.  381. 


388  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

21.  In  the  absence  of  an  express  grant,  defining  the  extent 
and  mode  of  application  to  use  of  an  artificial  watercourse, 
reference  must  be  had  to  such  use  as  has  actually  existed 
for  the  requisite  period  of  time  to  acquire  a  prescriptive 
right  to  the  same,  and  it  hardly  need  be  added,  that  the 
owner  thereof  cannot  change  or  increase  the  extent  of  such 
enjoyment  as  against  the  riparian  proprietors.  So  that  if, 
for  instance,  there  be  a  surplus  of  water  in  the  stream  be- 
yond what  the  owner  of  such  artificial  watercourse  has 
acquired  a  right  to  appropriate  by  having  applied  the  same 
to  use,  it  belongs  to  the  riparian  proprietor,  and  the  owner 
of  the  trench  or  watercourse  may  not  appropriate  the  same 
by  enlarging  his  trench  or  making  use  of  an  increased  quan- 
tity of  water  at  his  works.^ 

22.  Though  a  land-owner  may  not  divert,  or  unreasonably 
obstruct,  the  water  of  a  stream  flowing  through  his  land,  so 
as  to  deprive  the  proprietor  below  of  the  use  of  the  same 
through  and  along  its  accustomed  channel,  he  may  change 
its  direction  by  artificial  channels  through  his  own  land  at 

his  pleasure,  provided  he  do  not  thereby  diminish  the 
[*315]   *beneficial   use  of  the   same   to   other   proprietors. 

Nor  would  a  lower  mill-owner  have  any  better  right 
to  disturb  the  owner  of  an  upper  mill,  which  was  placed 
within  the  owner's  land  upon  an  artificial  channel,  than  if 
placed  upon  a  natural  one.  The  rights  of  the  mill-owner  in- 
cident to  his  ownership  as  riparian  proprietor  would  be  the 
same  in  the  one  case  as  in  the  other.^  But  if  the  land- 
owner, having  changed  the  direction  of  a  natural  stream 
through  his  land,  were  to  suffer  others,  who  are  entitled  to 
a  right  to  the  use  of  the  water,  to  go  on  and  expend  money 
in  reference  to  such  use,  imdcr  a  belief  that  the  new  chan- 
nel was  to  be  a  permanent  one,  and  this  were  known  to  the 
land-owner,  he  could  not  afterwards  change  the  course  of 


1  Tyler  v.  Wilkinson,  4  Mason,  395,  405,  407. 

2  Webster  V.  Fleming,  2  Humph.  518. 


Sect.  4.]  RIGHTS  IN   ARTIFICIAL   WATERCOURSES.  389 

the  stream  so   as   to   injure   the   party  who  expended  liis 
money  .^ 

23.  In  these  and  like  cases,  where  one,  who  owns  a  water- 
course in  which  another  is  interested,  or  by  the  use  of  which 
another  is  affected,  does  or  suffers  acts  to  be  done  affecting 
the  rights  of  other  proprietors,  whereby  a  state  of  things  is 
created  which  he  cannot  change  without  materially  injuring 
another  who  has  been  led  to  act  by  what  he  himself  had  done 
or  permitted,  the  courts  often  apply  the  doctrine  of  estoppel, 
and  equity,  and  sometimes  law,  will  interpose  to  prevent  his 
causing  such  change  to  be  made.  The  reader  will  take,  in 
this  connection,  as  a  general  principle  of  law,  that  if  one 
gives  another  a  parol  license  to  flow  his  land  by  a  dam  to  be 
built  upon  the  licensee's  land,^  or  to  build  a  dam  upon  the 
licenser's  land  and  the  like,  such  license  is  revocable.^  But 
in  an  early  case  in  equity,  where  A  had  been  at  great  expense 
to  divert  a  watercourse  which  put  B  to  expense  and 
operated  as  a  nuisance  as  to  him,  for  which  *he  [*316] 
brought  his  action  at  law,  the  court  granted  an 
injunction  against  prosecuting  the  suit,  because,  while  A  was 
engaged  in  causing  this  diversion,  B  stood  by,  and,  so  far 
from  objecting,  encouraged  him  to  proceed.* 

24.  A  case  is  also  stated  in  Middleton  v.  Gregorie,  by 
Butler,  J.,  where  it  would  seem  that  a  mill-owner  may  not 
always  abandon,  at  his  pleasure,  a  right  to  stop  and  divert 
the  flow  of  a  stream  by  a  mill-dam  which  he  has  acquired  by 
prescription  or  grant,  if  by  doing  so  he  will  work  an  injury 
to  a  riparian  proprietor  below  him,  against  whom  he  shall 
have  acquired  this  right.     He  supposes  the  case  of  a  riparian 

1  Ford  V.  Whitlock,  27  Vt.  265  ;  Norton  v.  Volentine,  14  Vt.  239  ;  Wood- 
bury V.  Short,  17  Vt.  387  ;  Townsend  v.  M'Donald,  14  Barb.  460;  Devonshire 
V.  Eglin,  7  Eng.  L.  &  Eq.  39  ;  s.  c,  14  Beav.  530. 

2  Otis  V.  Hall,  3  Johns.  450.  Contra,  McKellip  v.  M'llhenny,  4  Watts,  317  ; 
Lacy  V.  Arnett,  33  Penn.  St.  169. 

3  1  Washb.  Real  Prop.  399.  Contra,  Rerick  v.  Kern,  14  S.  &  R.  2G7 ;  Hous- 
ton V.  Saffee,  N.  H.  Rep.  15  Law  Reg.  380. 

*  2  Eq.  Cas.  Abr.  522;  ante,  chap.  1,  sect.  3,  pi.  43;  Campbell  v.  M'Coy,  31 
Peno.  St.  263,  adopts  the  doctrine  of  the  2  Eq.  Cas.  Abr.  522  ;  post,  sect.  25. 


390       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

proprietor  upon  a  stream,  who  should  yield  to  a  stoppage 
and  diversion  of  the  water  thereof  for  twenty  years,  by  a 
dam  erected  by  another  upon  his  own  land  above  such  ripa- 
rian proprietor,  and  the  latter  should,  in  consequence,  appro- 
priate his  land  to  a  dry  culture,  such  as  corn  or  cotton, 
which,  before  such  diversion,  could  not  have  been  cultivated 
thereon.  "  Would  the  defendant  "  (the  owner  of  the  dam), 
asks  tlie  judge,  "  have  a  right  to  cut  his  dam  and  destroy  the 
growing  crop  ?  "  "  For  all  legal  purposes,"  he  answers, 
"  the  plaintiff  might,  under  such  circumstances,  have  re- 
garded his  land  as  though  tlie  water  had  never  flowed 
through  it.  Indeed,  I  think  he  would  have  as  much  right 
to  enjoy  his  property  in  security,  as  if  he  had  cultivated  dry 
land  above  ;  and  it  is  very  clear  that,  where  one  has  land 
lying  adjacent  to  a  stream,  and  a  proprietor  below  dams  the 
water  back  upon  him,  the  former  has  a  right  of  action  to 
abate  the  nuisance."  ^ 

25.  There  is  one  other  case  which  it  may  be  proper  to 
notice,  although  it  can  hardly  be  regarded  as  settling  many 
principles  applicable  in  those  States  where  the  same  rules 
of  law  as  to  executed  licenses  do  not  prevail  as  in  Pennsyl- 
vania, or  the  rules  of  equity  are  not  equally  liberal 
[*317]  in  *  modifying  the  common  law  in  determining  the 
rights  of  suitors.  The  case  is  Le  Fevre  v.  Le  Fevre. 
The  owner  of  a  parcel  of  land  sold  a  part  of  it  to  the  owner 
of  a  tanyard,  together  with  a  right  to  draw  water  by  pipes 
laid  in  the  earth  along  a  designated  line  through  the^ven- 
dor's  land,  from  a  stream  in  his  land  to  the  vendee's  tan- 
yard.  After  these  pipes  had  been  laid  and  used  for  a  con- 
siderable time,  it  was  orally  agreed  between  the  parties  that 
they  should  be  taken  up  and  laid  in  another  place  than  the 
line  indicated  by  the  deed,  and  it  was  accordingly  done  by 
the  vendee  at  his  expense.  After  lying  in  this  situation,  and 
being  used  for  six  or  seven  years  in  connection  with  the  busi- 
ness of  the  tanyard,  the  owner  of  the  latter  sold  the  same 

1  Middletoii  i;.  Grcgoric,  2  Eicli.  G31,  638. 


Sect.  4.]  RIGHTS   IN   ARTIFICIAL    WATERCOURSES.  391 

with  the  water  right  which  he  had  purchased  to  the  present 
plaintiff.  Soon  after  this  the  original  vendor  cut  off  the 
pipes  within  his  own  land,  and  stopped  the  flow  of  water 
therein  to  the  tanyard,  and  for  this  the  plaintiff'  brought  the 
present  action.  The  court  held,  that  as  the  pipe  was  laid  in 
a  manner  indicated  by  the  owner  of  the  land,  at  the  expense 
of  the  owner  of  the  tanyard,  a  court  of  equity  would  treat 
the  latter  as  owning  the  right  to  maintain  it  there,  first,  by 
having  incurred  expense  in  laying  it  down  under  an  agree- 
ment with  the  land-owner  that  he  should  have  such  right, 
and  second,  by  his  being  in  possession ;  that  the  court  would 
require  the  land-owner  to  execute  this  agreement  on  his 
part,  and  would  have  granted  an  injunction  to  prevent  the 
land-owner  from  prosecuting  a  suit  at  law  for  laying  down 
the  pipe,  and  that  courts  of  law  would  not  suffer  him,  under 
these  circumstances,  to  take  the  law  into  his  own  hands  by 
cutting  or  destroying  the  aqueduct.  To  the  suggestion  that 
the  laying  down  of  the  pipe  was  done  by  a  parol  license  only, 
which  was  revocable,  the  court  hold  that,  after  having  been 
executed  and  expense  thereby  incurred  by  the  licensee,  it 
could  not  be  revoked  so  as  to  make  the  licensee  a  wrong- 
doer. And  they  held  it  was  competent  to  show  by 
parol  that  *  another  spot  was  substituted  for  that  de-  [*318] 
scribed  in  the  deed,  as  the  same  had  been  carried 
into  effect,  and  the  original  contract  could  not,  therefore, 
be  insisted  upon  without  working  a  fraud  upon  one  of  the 
parties. 

The  court  cited  the  case  above  mentioned  from  2  Equity 
Cases  Abridged,  and  that  of  Short  v.  Taylor,  said  to  have 
been  decided  by  Lord  Somers,  where  Taylor  in  building  a 
house  laid  his  foundation  partly  upon  Short's  land,  he  stand- 
ing by  and  encouraging  him ;  and  upon  bringing  an  action 
therefor,  the  Chancellor  granted  an  injunction  against  his 
proceeding  with  it.  Silent  acquiescence  would  seem  from 
this  to  have  been  regarded  in  the  light  of  an  express  license, 
but  even  that,  by  the  ordinary  rules  of  the  common  law, 


392      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

might  be  revoked,  though  held  otherwise  in  Pennsylva- 
nia.^ 

26.  Somewhat  akin  to  the  case  of  the  change  of  a  natural 
current  by  substituting  an  artificial  channel  therefor,  is  that 
of  a  change  in  such  current  by  an  extraordinary  natural 
cause,  like  that  of  a  freshet,  for  instance.  In  one  case  a 
stream  had  flowed  first  through  the  defendant's  and  then 
through  the  plaintiff's  land,  until  1830.  In  that  year  the 
course  of  the  current  was  so  changed  by  the  effect  of  a 
freshet,  that  from  that  time  it  ran  wholly  within  the  land 
of  the  defendant,  avoiding  that  of  the^,plaintiff.  In  1840,  the 
defendant  changed  the  then  course  of  the  stream  back  to  its 
original  line,  so  as  again  to  run  across  the  plaintiff's  land, 
for  doing  which  the  present  action  was  brought. 

The  court,  in  giving  an  opinion,  waive  the  question  how 
far  the  defendant  might  have  restored  the  current  back  to 
its  original  course  before  any  act  of  acquiescence  on  his  part. 
But  they  held  that,  after  so  long  an  acquiescence,  he  was 
not  at  liberty  to  do  it.  They  refer  to  Hale's  De  Jure  Maris  ^ 
for  the  doctrine,  "  that  if  a  river  leaves  its  course, 
[*319]  *  and  sensibly  makes  its  channel  entirely  in  the  lands 
of  A,  the  whole  river  belongs  to  A.  Aqua  cedit  solo.^^ 
And  they  likened  the  case  under  consideration  to  that  of  a 
quantity  of  earth  suddenly  carried  away  by  a  flood,  or  the 
like,  from  one  man's  estate,  and  lodged  upon  that  of  another. 
If  the  former  suffers  it  to  remain  until  "  it  cements  and  co- 
alesces with  the  soil,  the  property  is  changed,  and  there  is 
no  right  to  reclaim  the  soil."'^ 

In  the  last-cited  case  the  court  held  that,  if  a  river  not 
navigable  change  its  course  so  as  to  cut  off"  a  point  of  land, 
leaving  it  an  island  in  the  stream,  it  would  belong  to  the 

1  Le  Fevrc  v.  Lo  Fevre,  4  Serg.  &  K.  241  ;  ante,  sect.  23  ;  Short  v.  Taylor, 
2  Eq.  Ciis.  Abr.  522.     See  ante,  p.  *19. 

2  Ilargravc's  Tracts,  pp.  5,  6. 

3  VVoodljury  v.  Short,  17  Vt.  387.  See  2  Washb.  Real  Prop.  453,  note ;  Trus- 
tees, &c.  V.  Dickenson,  9  Cash.  454;  1  Fournel,  Traitc',  &c.  157,  §  38;  Code 
Nap.,  Art.  559. 


Sect.  5.]  SPECIAL   LAWS  AS   TO   MILLS.  393 

original  owner.  If  the  bed  of  the  stream  gradually  fdl  up 
by  deposit,  and  the  stream  take  a  new  channel,  the  new  land 
so  formed  belongs  to  the  original  proprietors  of  the  stream 
respectively,  to  its  original  thread.  If  land  forms  above 
such  island  within  the  stream,  not  by  accretions  to  such 
island,  and  becomes  an  island  in  the  stream,  it  would  belong 
to  the  riparian  proprietors  according  as  it  was  divided  by  the 
filum  aquce,  which  is  the  medium  line  between  the  banks  or 
natural  water-lines  on  the  shores,  at  the  time  the  new  land 
was  formed,  irrespective  of  tlie  relative  depth  of  the  water  in 
the  different  parts  of  the  stream. ^  Soil  gained  by  the  grad- 
ual and  imperceptible  accretion  upon  land  bounding  upon  a 
river  or  the  sea,  becomes  the  property  of  the  land-owner,  and 
this  extends  to  sea-weed  accumulatino;  thereon.^ 


^SECTION  V.  [*320] 


SPECIAL   LAWS   AS   TO   MILLS. 

1.  Grounds  upon  which  these  statutes  are  based. 

2.  How  far  the  acts  of  Massachusetts  constitutionaL 

3.  The  constitutionality  of  the  Virginia  system. 

4.  How  far  private  property  may  be  talien  for  private  use. 

5.  Mill  Acts  of  ]\Iassachusetts. 

1  See  Pratt  v.  Lamson,  2  Allen,  275 ;  Carson  v.  Blazer,  2  Bin.  485. 

The  rules  laid  down  in  the  Digest  upon  tlic  subjects  above  treated  of  arc  in 
these  words :  "  Quod  si  vis  flumiuis  partem  aliquam  ex  tuo  prsedio  detraxerit, 
et  meo  pra^dio  attulerit,  palam  est  earn  tuam  permanere.  Plane  si  longiore 
tempore  fundo  meo  hteserit,  arboresque  quas  secura  traxerit,  in  meum  fundum 
radices  egerint,  ex  eo  tempore  videtur  meo  fundo  adquisita  esse."  D.  41,  1,  7,  2. 
See  also  Inst.  2,  1,  21. 

"  Insula  quae  in  niari  nascitur  (quod  raro  accidit)  occupantis  sit ;  nullius 
enim  esse  creditur.  In  ilumine  nata  (quod  frequenter  accidit)  si  quidera  mediam 
partem  fluminis  tenet,  communis  est  eorum  qui  ab  utraque  parte  fluminis  prope 
ripam  prsedia  possident,  pro  modo  latitudinis  cujusque  prajdii,  qi;;B  latitudo 
prope  ripam  sit.  Quod  si  alteri  parti  proximior  sit,  eorum  est  tantum  qui  ab 
ea  parte  prope  ripam  pra;dia  possident."  D.  41,  1,  7,  3.  See  also  Inst.  2, 
I,  22. 

2  Emans  v.  Turnbull,  2  John.  313;  Hargrave's  Tracts,  p.  28;  Ford  c.  Lacy, 
7  H.  &  Nomr.  156. 


394  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

6.  Apply  only  to  injuries  to  land  by  mill-dams. 

7.  Extend  to  injuries  below  as  well  as  above  mills. 

8.  Do  not  extend  to  stoppage  of  v/ater  by  an  upper  mill. 

9.  Laws  of  Maine  apply  only  where  actual  damage  done. 

10.  Of  fixing  b}'  the  jurj'  of  the  height  the  mill-owner  may  flow. 

11.  Parol  release  of  damages  by  flowing. 

12.  The  law  authorizes  construction  of  reservoirs. 

13.  Extends  only  to  cases  where  mill-owner  owns  both  banks. 

14.  Only  extends  to  an  occupied  privilege  of  the  owner. 

15.  Does  not  extend  to  tide-mills. 

16.  What  is  considei-ed  an  occupation  of  a  privilege. 

17.  The  first  occupant  has  the  prior  right  to  a  privilege. 

18.  Application  of  this  doctrine.     Case  of  Gary  v.  Daniels. 

19.  What  constitutes  a  prior  occupation. 

20.  An  occupation  requires  both  intent  and  act  done. 

21.  Action  lies  for  flowing  above  the  prescribed  height. 

22.  Unless  height  of  flowing  is  fixed  by  grant. 

23.  Statute  only  protects  actually  existing  mills. 

24.  Eflect  of  decay  and  abandonment  of  mill  and  dam. 

25.  What  would  be  such  abandonment. 

26.  Statute  right  to  flow  lands  operates  a  license. 

27.  Statute  confers  no  estate  in  the  lands  flowed. 

28.  Power  to  flow  subject  to  public  i-ight  of  passage. 

29.  Statute  extends  to  flowing  to  the  injury  of  drains. 

30.  Statute  protects  mills  from  being  flowed. 

31.  Of  remedy  for  flowing  before  actual  damage  done. 

32.  How  far  flowing  adverse  before  actual  damage  done. 

33.  All  mill  acts  of  the  States  local  in  their  effect. 

34.  How  far  the  United  States  affected  by  State  mill  acts. 

35.  Mill  Acts  of  Maine. 

36.  Mill  Acts  of  Wisconsin. 

37.  Law  of  flowing  in  Rhode  Island. 

38.  Virginia  system  of  mill  acts. 

39.  Laws  as  to  mills  in  Missouri. 

40.  Of  priority  of  rights  under  the  Virginia  sj'stem. 

41.  Laws  as  to  mills  of  Arkansas  and  Kentuckj'. 

42.  Laws  of  Mississippi  as  to  mills. 

43.  Laws  of  North  Carolina  as  to  mills. 

44.  Laws  of  Indiana,  Illinois,  and  Florida. 

45.  All  these  laws  strictly  construed. 

46.  Statutes  of  Alabama  and  Maryland  abrogated  or  repealed. 

[*321]  *1.  The  stringency  with  which  the  common  law  lim- 
ited the  rights  of  riparian  proprietors  upon  streams  of 
water  to  such  uses  as  it  might  be  applied  to,  within  and  upon 
the  land  of  each  proprietor,  and  the  importance  of  mills  to 
the  comfort  of  a  community,  must  necessarily  have  been  at- 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  395 

tended  with  great  inconvenience  to  new  settlers  in  a  coun- 
try, like  the  colonists  of  America,  where,  from  the  nature  of 
the  case,  nothing  like  prescriptive  rights  could  have  been 
acquired  for  many  years  after  their  settlement.  In  a  colony, 
moreover,  where  the  loss  of  a  few  acres  of  land  bore  but  a 
slight  proportion  to  the  value  and  importance  of  grist  and 
saw  mills,  it  could  hardly  have  been  otherwise  than  that 
some  policy  should  be  adopted  better  suited  to  meet  the 
condition  of  such  a  people  than  the  rules  of  the  common 
law,  which  had  their  origin  and  application  in  a  country  so 
different  in  its  physical  as  well  as  its  social  capacities  and 
wants.  It  is,  accordingly,  historically  true,  that,  from  an 
early  period  in  Massachusetts,  the  common  law  as  to  the 
rights  and  liabilities  of  mill-owners  has  been  essentially 
modified  by  statute.  Partly  by  these  statutes,  and  partly  by 
the  construction  of  courts  in  applying  existing  laws  to  the 
growing  exigencies  which  they  were  designed  to  meet,  a 
system  of  Mill  Laws,  as  tliey  are  called,  quite  complete  in 
itself,  has  grown  up  in  Massachusetts,  and  forms  substan- 
tially also  the  law  of  Maine  and  of  Wisconsin  upon  the  same 
subject.  Other  and  distinct  systems  in  respect  to  taki^ig 
and  appropriating  lands  for  mill  purposes  have  been  adopted 
in  other  States.  So  that  to  treat  of  this  subject  with  any  con- 
siderable degree  of  completeness  requires  that  an  outline,  at 
least,  of  those  systems  should  be  presented  to  the  reader. 

In  one  sense,  so  far  as  the  mode  and  extent  of  making 
use  of  the  land  of  one  proprietor  by  another  for  his  own 
benefit  as  a  mill-owner  is  concerned,  when  tried  by  the 
rules  of  the  common  law,  it  is  a  system  of  easements  and 
servitudes.  But  they  are  servitudes  and  easements 
*created  by  law  instead  of  being  acquired  by  grant  [*o22] 
or  prescription.  Tliis  remark  applies  with  more  pro- 
priety to  a  system  like  that  of  Massachusetts,  where  the  mill- 
owner  is  only  authorized  to  occupy,  by  flowing  the  same,  the 
land  of  another  for  the  purpose  of  operating  a  mill,  which, 
as  well  as  the  dam  belonging  to  the  same,  are  erected  on 


396  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cii.  111. 

his  own  land ;  but  the  law  does  not  confer  upon  him  any 
estate  in  or  title  to  the  land  thus  occupied.  Whereas,  under 
what  may  be  called  the  Virginia  system,  the  mill-owner  ac- 
quires a  title  to  so  much  land  as  shall  be  taken  under  process 
of  law  for  the  purposes  of  a  mill,  including,  it  may  be,  the 
land  upon  which  a  portion  of  the  dam  is  placed,  as  well  as 
such  parts  thereof  as  may  be  flowed  thereby. 

2.  This  authority  by  a  general  law,  under  which  one  man 
is  empowered  to  take  and  occupy  the  land  of  another  for  his 
own  profit  and  advantage,  has  been  questioned  on  constitu- 
tional grounds.  The  question  has  been,  incidentally,  dis- 
cussed in  various  forms  by  the  courts  of  Massachusetts,  in 
which  it  has,  sometimes,  been  treated  as  a  mere  statute 
remedy  for  a  wrong,  assuming  that  the  act  of  occupancy 
was  a  common-law  wrong.  But  in  whatever  form  it  is 
viewed,  it  is  not  to  be  disguised,  that  the  statute  does  au- 
thorize one  man  not  only  to  recover  damages  in  a  particular 
manner  for  the  act  of  flowing  his  land  by  another,  but  it 
authorizes  the  latter  to  continue  and  maintain  the  nuisance 
against  the  will  of  the  owner,  in  the  same  manner  as  if  he 
wgre  the  true  owner  of  an  easement  in  the  estate.  And 
every  pretence  upon  which  this  can  be  deemed  to  come  within 
the  principles  of  the  Constitution  must  fail  unless  it  can 
fairly  be  brought  within  the  broad  doctrine  that  private  prop- 
erty may  be  taken  for  the  public  good,  upon  a  compensation 
being  had  therefor.  A  recurrence  to  a  few  of  the  cases 
where  the  matter  has  been  discussed  may  be  sufficient  for 
the  present.  In  Boston  and  Roxbury  Mill-Dam  Cor- 
[*323]  poration  v.  Newman,  the  court  held  the  act  *creating 
tlic  company,  and  authorizing  them  to  flow  the  land 
of  others,  so  far  a  public  enterprise  as  to  be  within  the  intent 
of  the  Constitution,  and  they  held,  further,  that  not  only 
must  the  land-owner  submit  to  having  his  land  flowed  for  the 
purpose  of  creating  a  head  of  water  for  the  plaintiffs'  mill, 
but  that  he  might  not  fill  it  up,  and  thereby  diminish  the 
size  and  cai)acity  of  their  pond,  although  he  retained  the  fee, 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  397 

and  the  company  only  had  the  casement  of  a  right  to  flow. 
But  the  court,  at  the  same  time,  admit  that  the  mill-owner 
is  under  no  corresponding  obligation  to  grind  for  any  one 
against  his  will.  In  that  case,  the  several  laws  upon  the 
subject  are  referred  to  by  Putnam,  J.,  in  giving  the  opinion 
of  the  court,  and  the  constitutional  grounds  on  which  they 
may  be  considered  to  rest  are  examined.^ 

The  first  of  these  statutes  was  passed  in  1718,  expressly  re- 
citing that  "  the  building  of  mills  is  serviceable  for  the  public 
good  and  benefit  to  the  town,"  and  that,  in  "  raising  a  suit- 
able head  of  water  for  that  service,  it  hath  so  happened  that 
some  small  quantity  of  lands  or  meadows  have  thereby  been 
flowed."  And  in  order  to  prevent  a  multiplication  of  suits 
for  such  an  injury,  the  statute  authorizes  a  continuance  on 
the  part  of  the  mill-owner  to  flow  the  land,  and  provides  for 
a  mode  of  assessing  damages  for  the  same  by  a  jury,  upon 
complaint  of  the  land-owner,  to  be  annually  paid.  This  re- 
cital clearly  indicated  the  ground  upon  which  the  statute  was 
based,  namely,  an  act  on  the  part  of  one  party  designed  to 
promote  a  manifest  public  benefit,  in  effecting  which  an  un- 
intentional infringement  of  the  legal  rights  of  another  had 
been  occasioned.  And  while  it  provided  compensation  for 
the  private  injury,  it  authorized  the  act  to  be  continued  as 
something  required  by  the  public  good.^  And  when  the 
statute  of  1795  was  passed,  extending  the  right  to  flow  any 
lands  of  another  for  the  pvirpose  of  raising  a  suita- 
*ble  head  of  water  for  working  a  mill,  the  language  [*324] 
of  Parker,  C.  J.,  in  Stowell  v.  Flagg,  was  undoubt- 
edly justified,  that  "  he  could  not  help  thinking  it  was  in- 
cautiously copied  from  the  Colonial  and  Provincial  Acts, 
which  were  passed  when  the  use  of  mills,  from  the  scarcity 
of  them,  bore  a  much  greater  value,  compared  to  the  land 
used  for  the  purposes  of  agriculture,  than  at  present."  ^ 

1  Boston  and  Roxbury  Mill-Dam  Corporation  v.  Newman,  1 2  Pick.  467. 

2  Col* Laws,  404. 

3  Stowell  V.  Flagg,  11  Mass.  364. 


398  THE   LAW   OF   EASEMENTS   AND   SEKVITUDES.         [Cii.  III. 

The  statute,  in  the  case  last  cited,  is  regarded  as  one  of 
remedy  alone.  Other  views  of  it  are  presented  in  other 
cases,  as,  for  instance,  in  Bates  v.  Weymouth  Iron  Co.,^  by 
Shaw,  C.  J.,  and  in  Williams  v.  Nelson,'-^  by  the  same  judge. 

The  case  of  Hazen  v.  Essex  Company  ^  was  one  where  the 
general  law  authorizing  mill-owners  to  flow  the  lands  of 
others  was  extended  by  a  special  act  to  the  flowing  back 
water  upon  an  existing  mill  to  its  destruction,  by  means  of  a 
dam  across  the  Merrimack  River,  for  the  creation  of  an  ex- 
tensive mill-power ;  and  the  act  was  held  to  be  constitu- 
tional, as  coming  within  the  power  of  the  legislature  to  pass 
acts  required  by  the  public  good.  The  language,  however, 
of  the  court  in  Maine  is  to  a  certain  extent  undoubtedly  war- 
ranted by  the  whole  history  of  the  "  Mill  Acts  "  of  that  State, 
as  well  as  of  Massachusetts,  which,  in  the  sequel,  will  be 
found  to  have  practically  carried  the  doctrine  to  the  length, 
that  any  one  wishing  to  create  a  mill-power  for  his  own  use 
and  emolument,  may  appropriate  the  mowing,  or  tillage,  or 
woodland  of  another  to  such  extent  as  he  pleases,  and  exer- 
cise a  perpetual  easement  over  the  same,  which  in  effect  de- 
stroys all  valuable  property  therein  of  the  owner  of  such 
land,  upon  paying  such  sum  in  damages  as  a  jury  shall  esti- 
mate. "  The  Mill  Act,"  says  Rice,  J.,  "  as  it  has  existed 
in  this  State,  pushes  the  power  of  eminent  domain 
[*325]  *  to  the  very  verge  of  constitutional  inhibition.  If 
it  were  a  new  question,  it  might  well  be  doubted 
whether  it  would  not  be  deemed  to  be  in  conflict  with  that 
provision  of  the  Constitution,  —  private  property  shall  not 
be  taken  for  public  uses  without  just  compensation,  nor  un- 
less the  public  exigencies  require."* 

1  Bates  V.  Weymouth  Iron  Co.,  8  Cush.  548,  553.  See  also  Murdock  v. 
Stickncy,  Ibid.  113. 

-  Williams  v.  Nelson,  23  Pick.  141. 

3  llazcn  V.  Essex  Company,  12  Cush.  475. 

*  Jordan  j\  Woodward,  40  Me.  317,  323.  Sec  2  Am.  Jurist.  25-39.  Shmv, 
C.  J.,  in  Murdock  v.  Stickncy,  supra,  expressly  denies  that  the  statute  rests 
upon  the  rifj^ht  of  eminent  domain,  or  that  it  is  in  any  proper  sense  a  taking 
of  the  projicrty  of  the  owner  of  the  land. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  399 

The  most  sensible  ground  upon  whicli  these  statutes  are 
to  be  placed  seems,  after  all,  to  be  furnished  in  Talbot  v. 
Hudson,  in  which  the  court  hold  that  it  is  as  competent  for 
the  legislature  to  authorize  a  body  of  land-owners  to  abate 
the  dam  of  a  mill-owner,  if  the  public  good  requires  it,  and 
thereby  relieve  their  lands  from  being  flowed,  as  it  is  to  au- 
thorize a  mill-owner  to  flow  them.  The  principle  applicable 
and  governing  in  all  these  cases  is,  that  private  interests 
must  yield  to  public  exigencies,  and  that  private  property, 
in  such  cases,  may  be  appropriated,  if  compensation  therefor 
is  provided. 

The  opinion  of  the  court  was  given  by  Bigelow,  C.  J., 
and  the  following  extracts  will  present  the  grounds  on 
which  these  statutes  rest  in  as  satisfactory  a  light  as  could 
well  be  desired.  In  this  case,  the  legislature  had  passed  an 
act  authorizing  the  removal  of  a  mill-dam  in  consequence 
of  the  alleged  extent  of  the  injury  thereby  occasioned  to  the 
lands  of  riparian  proprietors  upon  the  stream  above  it.  The 
constitutionality  of  the  act  was  denied,  but  sustained  by  the 
court. 

"  If  land  is  taken  for  a  fort,  a  canal,  or  a  highway,  it 
would  clearly  fall  within  the  first  class  (public  use).  If  it 
was  transferred  from  one  person  to  another,  or  to  several 
persons,  solely  for  their  peculiar  benefit  and  advantage,  it 
would  as  clearly  come  within  the  second  class  (private  use). 
But  there  are  intermediate  cases  where  public  and 
*  private  interests  are  blended  together,  in  which  it  [*o26] 
becomes  more  difficult  to  decide  within  which  of  the 
two  classes  they  may  be  properly  said  to  fall.  There  is  no 
fixed  rule  or  standard  by  which  such  cases  can  be  tried  and 
determined.  Each  must  necessarily  depend  upon  its  own 
peculiar  circumstances In  a  broad  and  comprehen- 
sive view,  such  as  has  been  heretofore  taken  of  the  construc- 
tion of  this  clause  of  the  Declaration  of  Rights,  everything 
which  tends  to  enlarge  the  resources,  increase  the  industrial 
energies,  and  promote  the  productive  power  of  any  consider- 


400  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  Ill 

able  number  of  the  inhabitants  of  a  section  of  the  State,  or 
which  leads  to  the  growth  of  towns  and  the  creation  of  new 
resources  for  the  employment  of  private  capital  and  labor,  in- 
directly contributes  to  the  general  welfare,  and  the  prosper- 
ity of  the  whole  community.  It  is  on  this  principle  that 
many  of  the  statutes  of  the  Commonwealth,  by  which  pri- 
vate property  has  been  heretofore  taken  and  appropriated  to 
a  supposed  public  use,  are  founded One  of  the  earli- 
est and  most  familiar  instances  of  the  exercise  of  such  a 
power  under  the  Constitution  is  to  be  found  in  the  statute 
for  the  erection  and  regulation  of  mills And  it  is  be- 
cause they  thus  lead,  incidentally,  to  the  promotion  of  one 
of  the  great  public  industrial  pursuits  of  the  Commonwealth 
that  they  have  been  heretofore  sanctioned  by  this  court,  as 
well  as  by  the  legislature,  as  being  a  legitimate  exercise  of 
the  right  of  eminent  domain  justifying  the  taking  and  appro- 
priating of  private  property."  ^ 

Whatever,  therefore,  might  have  been  thought  of  statutes 
like  these  in  their  application  to  particular  cases,  if  the  ques- 
tion were  now  raised  for  the  first  time,  their  validity  may  be 
assumed  to  rest  upon  premises  at  once  well  founded  and  in- 
telligible.2 

3.  The  Virginia  system  seems  to  be  open  to  more 
[*327]  obvious  *objections  upon  constitutional  grounds  than 
that  of  Massachusetts,  though  the  same  broad  con- 
struction which  authorizes  the  appropriation  of  the  use  of 
the  property  of  one  man  for  the  benefit  of  another  would 
seem  to  reach  the  taking  and  appropriating  of  the  property 
itself.  The  statutes  of  Virginia,  and  of  the  States  which 
have  followed  her  in  their  policy,  provide,  in  general  terms, 
that  one  owning  land  upon  one  side  only  of  a  stream  may, 
by  process  of  law,  acquire  a  title  to  sufficient  land  upon  the 

1  Talbot  V.  Hudson,  24  Law  Rep.  228.     See  also  Commonwealth  v.  Essex  Co., 
13  Gray,  239,  2b\  ;  Chase  v.  Sutton  Mg.  Co.,  4  Cush.  152,  169. 

2  Newcomb  v.  Smith,  1  Chand.  71  ;  Pratt  v.  Brown,  3  Wis.  G03  ;  Fisher  v. 
Iloricgn,  &c.  Co.,  10  Wis.  351. 


Sect.  5.]  SPECIAL   LAWS  AS   TO   MILLS.  401 

opposite  side  on  which  to  erect  his  dam  and  create  a  water- 
power.  The  courts  of  Alabama  in  1859  pronounced  a  stat- 
ute of  this  character  unconstitutional,  although  it  had  stood 
upon  the  statute-book  of  that  Territory  and  State  since  1812, 
though,  had  this  power  been  limited  to  grist-mills,  which  by 
§  1112  of  the  Code  of  tliat  State  are  declared  to  be  public 
mills  if  they  grind  for  toll,  the  statute  might  have  been 
deemed  to  come  within  the  provisions  of  the  Constitution.^ 

So  that  the  question  in  all  these  cases  turns  upon  the 
point  whether  the  use  for  which  the  statute  authorizes  the 
taking  by  one  man,  or  a  body  of  men,  of  the  property  of  an- 
other is  a  public  one  or  otherwise.  This  question  has  been 
raised  in  respect  to  other  involuntary  easements  in  the  lands 
of  individuals,  such  as  the  laying  out  private  ways  over  the 
land  of  one  man  for  the  benefit  of  the  estate  of  another, 
which  is  provided  for  in  the  statutes  of  several  of  the  States. 
And  in  some  of  them,  tlie  power  to  do  this  has  been  denied, 
as  being  against  the  provisions  of  their  Constitutions.  Such 
has  been  the  case  in  New  York,  Tennessee,  and  Alabama.^ 

4.  If  the  act  authorizing  the  taking  of  such  property  can 
be  brought  within  the  proper  exercise  of  the  right  of  eminent 
domain,  it  ceases  to  be  one  of  questionable  validity. 
*But  it  adds  notliing  to  the  validity  of  an  act,  if  it  [*328] 
transcends  this  limit,  that  it  makes  provision  for  a 
full  compensation  to  the  owner  on  the  part  of  him  who  shall 
have  attempted  to  appropriate  the  property  of  another  to  his 
own  personal  benefit.^ 

The  doctrine  of  the  court  of  New  York,  in  Heyward  v. 
Mayor  of  New  York,  is  believed  to  be  the  sound  one,  that 
the  right  to  take  private  property  for  public  uses  is  an  inher- 
ent attribute  of  sovereignty,  which  exists  in  every  independ- 
ent State.      But  no  man  can  have  his  property  taken  from 

1  Moore  v.  Wright,  34  Ala.  311,  333. 

2  Taylor  v.  Porter,  4  Hill,  140;  Clock  v.  White,  2  Swan,  540;  Sadler  v. 
Langham,  34  Ala.  311. 

3  Varick  v.  Smith,  .5  Paige,  137,  159;  Matter  of  Albany  Street,  11  Wend. 
149 ;  Bowman  v.  Middleton,  1  Bay,  252 ;  2  Kent,  Comni.  276  ;  Ibid.  340. 

26 


402  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

him  without  his  consent,  and  given  to  another,  hy  mere  legis- 
lation.^ "  We  know  of  no  case  in  which  a  legislative  act  to 
transfer  the  property  of  A  to  B,  without  his  consent,  has 
ever  been  held  a  constitutional  exercise  of  legislative  power 
in  any  State  in  the  Union.     Per  Story,  J? 

And  where  the  right  of  eminent  domain  has  been  once 
exercised  by  taking  one's  land  for  purposes  of  a  street  or  high- 
way, and  a  railroad  company  are  then  authorized  by  act  of 
legislature  to  lay  their  way  over  the  land  so  taken,  it  is  such 
an  injury  to  the  owner  of  the  fee  of  the  soil,  as  to  entitle  him 
to  new  damages  by  the  creation  of  this  new  easement  over 
his  land.'5 

But  it  was  held  otherwise  in  case  of  locating  a  horse  rail- 
road over  a  public  highway  in  Connecticut.^ 

It  should  be  remarked,  in  passing,  that,  so  far  as  these 
laws  operate  to  create  what  answers  to  a  servitude  upon  one 
estate  in  favor  of  another,  the  rights  and  obligations  of  the 
owners  of  the  dominant  and  servient  tenements  are  governed 
by  the  lex  loci  rei  sUce.^ 

5.  With  this  brief  glance  at  the  principles  upon  which  the 
acts  of  legislation  of  the  several  States  with  which  they  have 
seen  fit  to  override  the  rules  of  the  common  law  in  this  re- 
spect are  to  be  sustained,  it  becomes  proper,  in  the  next 
place,  to  give  an  outline  of  these,  although  it  would  obvi- 
ously be  unsuited  to  a  work  like  the  present  to  enter  with 
any  great  minuteness  upon  the  practical  detail  of  the  modes 
in  which  these  systems  have  been  carried  out  in  their  opera- 
tion. 

But  it  should  be  borne  in  mind  that,  in  all  cases  where  the 
party  is  entitled  to  his  damages  upon  complaint  under  the 
"  Mill  Acts,"  his  common-law  remedy  is  taken  away.^ 

1  Hey  ward  v.  Mayor  of  N.  Y.,  3  Seld.  .314.      ■ 

2  Wilkinson  v.  Leland,  2  Peters,  627,  G58. 

8  Inilay  v.  Union  B.  K.  R.,  26  Con.  249  ;  People  v.  Law,  22  How.  P.  C.  109 ; 
Wetmorc  v.  Law,  ib.  130. 
*  Elliot  V.  Fair  Haven  R.  R.  32  Con.  579. 
6  3  Burge,  For.  &  Col.  L.,  448. 
^  Vcasie  v.  Dwinel,  50  Maine,  485 ;  Fiske  v.  Framingham  Co.,  12  Pick.  69. 


Sect.  5.]  SPECIAL    LAWS    AS   TO   MILLS.  403 

Beginning  with  that  of  Massachusetts,  which  has  been  in 
operation  in  most  respects  in  Maine,  both  before  and 
since  *her  separation  from  the  former  State,  and  has,  [*329] 
to  a  considerable  extent,  been  adopted  in  Wisconsin, 
its  general  provisions  may  be  stated  in  a  summary  form.  It 
is  made  lawful  for  any  one  to  erect  a  dam  upon  his  own 
land,  across  a  stream  not  navigable,  for  the  purpose  of  rais- 
ing a  head  of  water  for  operating  a  mill,  and  to  maintain  the 
same,  provided  he  do  not  thereby  injure  any  mill  lawfully 
existing  upon  the  same  stream  above  or  below  such  dam, 
nor  any  mill-site  upon  the  same  on  which  a  mill  or  mill-dam 
has  been  lawfully  erected,  unless  the  right  to  maintain  the 
same  shall  have  been  lost  or  defeated  by  abandonment  or 
otherwise.  Nor  can  he  erect  such  dam  to  the  injury  of  a 
mill-site  which  has  already  been  occupied,  provided  the 
owner  thereof  shall  within  a  reasonable  time  after  commenc- 
ing such  occupation  complete  a  mill  and  put  the  same  in 
operation,  for  the  working  of  which  the  water  of  such  stream 
shall  be  aj^plied.  But  in  Wisconsin,  the  term  "  navigable," 
as  applied  to  a  stream,  does  not  imply  that  it  is  affected  by 
the  tides,  but  is  capable  of  being  navigated  for  purposes  of  a 
highway,  and  declared  to  be  such  by  statute,  as  Rock  River, 
for  instance. 1 

And  to  avoid  all  question  of  constructive  authority,  the 
statute  denies  to  any  one  a  right  to  place  any  part  of  his 
mill  or  dam  upon  the  land  of  another,  except  by  his  grant  or 
permission. 2 

The  same  statute  provides  for  an  assessment  of  damages 
in  favor  of  any  one  whose  lands  shall  be  flowed  or  damaged 
by  the  erection  and  maintenance  of  such  dam  and  mill,  and 
authorizes  the  jury  which  shall  be  impanelled  to  assess  the 
same,  to  fix  the  height  to  which  the  dam  and  flowing  may  be 
maintained,  and  during  what  parts  of  the  year  the  owner  of 

1  Cobb  V.  Smith,  16  Wise.  6G1.  See  post,  p.  *397 ;  Ward  v.  Ilustis,  17  Wis. 
416. 

2  Gen.  Stat.  c.  149. 


404  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

the  mill  may  flow  the  lands  of  the  complainant.  Various 
provisions  are  made  for  carrying  out  the  purposes  of  the 
statute,  such  as  giving  the  land-owner  a  lien  upon  the  mill 
and  dam  for  the  enforcement  of  his  damages,  and  for  in- 
creasing the  amount  in  certain  cases,  while  the  common-law 
remedy  for  such  injury  is  taken  away,  and  a  right  of  tender 

is  given  to  the  mill-owner.    And  to  save  a  multiplici- 
[*330]   ty  of  *complaints,  two  or  more  land-owners,  though 

not  jointly  interested  in  the  parcels  flowed,  may  join 
in  one  complaint,  if  damaged  by  the  same  mill-dam. 

While  these  provisions,  so  adverse  in  many  respects  to  the 
notions  of  the  common  law,  have  furnished  a  guide  to  the 
courts  in  determining  the  respective  rights  of  the  mill  and 
the  land-owner,  it  has  been  necessary  to  resort  to  many  of 
the  principles  of  the  common  law  in  applying  the  letter  of  the 
statute  to  particular  cases,  so  that  a  system  has  been  built 
up  here  which  combines  them  both  to  no  inconsiderable  ex- 
tent, as  will  appear  by  referring  to  the  cases  which  have 
been  decided  by  the  courts  from  time  to  time. 

6.  The  statute  in  the  first  place  only  covers  injuries  to 
land  occasioned  by  means  of  a  mill-dam  and  flowing  the 
same,  and  does  not  extend  to  injuries  to  other  property  than 
land,  nor  to  damages  occasioned  by  any^other  means  than 
raising  water  by  a  dam  for  mill  purposes.^  So  that  if  the 
flowing  of  one's  lands  occasions  offensive  smells,  and  thereby 
diminishes  the  value  of  other  lands  in  the  neighborhood  of 
those  flowed,  the  remedy  is  not  under  the  statute,  but  by  an 
action  at  the  common  law,  since  the  statute  does  not  author- 
ize what  would  be  a  private  nuisance,  beyond  the  mere  act 
of  flowing  of  land.2 

7.  But  where  land  is  flowed  by  means  of  a  mill-dam, 
it  matters  not  whether  it  be  situate  above  or  below  the  dam ; 
it  is  equally  within  the  statute  in  either  situation.^ 

1  Palmer  Co.  v.  Ferrill,  17  Pick.  58  ;  Thompson  v.  Moore,  2  Allen,  350. 

'■^  Eames  v.  N.  E.  Worsted  Co.,  11  Mctc.  570;  Murdock  v.  Stieknev,  8  Cush. 
116  ;  llookc  V.  Perkins,  14  Wis.  82. 

8  Gilc  V.  Stevens,  13  Gray,  146;  Shaw  v.  Wells,  5  Cush.  537;  Gen.  Stat, 
c.  149,^  4. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  405 

8.  Under  the  provision  restricting  a  mill-owner  from 
doing  anything  under  the  mill  acts  injurious  to  an  existing 
mill,  it  was  held  in  Maine,  under  Rev.  Stat.  c.  126,  §  2, 
that  where  one  erected  a  mill  above  an  existing  one,  and 
adopted  such  machinery  therein  that  the  water  ap- 
plied *in  carrying  the  same  was  not  sufficient  in  [*331] 
quantity  to  carry  the  works  in  the  prior  mill,  the 
owner's  remedy,  if  any,  for  being  deprived  of  his  accustomed 
flow  of  water,  was  by  an  action  on  the  case,  and  not  under 
the  statute  for  regulating  mills.^ 

9.  In  one  respect,  there  is  an  important  practical  diver- 
sity between  the  statutes  of  Maine  and  Massachusetts  on  this 
subject.  In  Maine  no  complaint  lies  until  the  flowing  occa- 
sioned by  the  dam  shall  have  caused  some  actual  damage  to 
the  land-owner,  and,  as  the  common-law  remedy  is  super- 
seded by  the  statute  in  such  cases,  such  land-owner  is  with- 
out remedy  until  actually  damaged.  This,  as  will  hereafter 
appear,  has  an  important  bearing  upon  the  question,  when 
the  party  flowing  begins  to  acquire  a  prescriptive  right  to 
maintain  it  by  an  adverse  enjoyment  of  the  same.  In  Mas- 
sachusetts, on  the  contrary,  it  is  no  answer  to  the  complaint 
of  the  land-owner  for  the  assessment  of  damages  for  flowing 
the  same,  that  no  actual  damage  has  yet  been  sustained. ^ 

If,  therefore,  under  the  Massachusetts  law,  a  mill-owner 
claims  a  right  by  prescription  to  flow  the  land  of  another, 
who  seeks  to  recover  damages  under  the  provisions  of  the 
statute,  he  ought  to  avail  himself  of  such  right  by  denying 
that  of  the  land-owner  to  have  a  warrant  issue  for  the  assess- 
ment of  damages. 3 

10.  And  where  a  jury,  in  fixing  the  height  to  which  the 
mill-owner  might  flow,  established  the  height  of  the  dam  by 

1  Wcntworth  v.  Toor,  38  Me.  243. 

2  Hathorn  v.  Stinson,  10  Me.  224  ;  s.  c,  12  Me.  183,  188;  Nelson  v.  Butter- 
field,  21  Me.  220;  Seklensparger  v.  Spear,  17  Me.  123;  Wood  v.  Kelley,  30 
Me.  47;  Gen.  Stat.  c.  149,  §  8-;  Williams  v.  Nelson,  23  Pick.  141  ;  ante,  chap. 
1,  sect.  4,  pi.  33;  post,  pi.  31. 

3  Wilmarth  v.  Knight,  7  Gray,  294. 


406  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IU. 

certain  marks,  it  was  held  that  he  might  flow  as  high  as  a 
dam,   maintained   at   the   prescribed    height,   would   flow.^ 

But  where  the  mill-owner  had  a  right  to  raise  the 
[*332]   water  *two  inches  above  a  certain  bolt,  it  was  held 

that  his  dam  must  be  so  built  as  not  to  flow  the 
water  above  that  point.^ 

11.  Though  it  is  a  familiar  doctrine,  that  an  easement 
in  another's  land  can  only  be  acquired  by  grant,  while  a 
parol  license  to  occupy  another's  land  is  in  most  of  the 
states  revocable  at  pleasure,  under  the  construction  given  to 
these  mill  acts,  which  authorize  a  mill-owner  to  occupy  the 
land  of  another  by  flowing  the  same,  if  the  latter  release  his 
damages  therefor,  though  by  parol,  it  will  bar  him  of  all 
claim  or  right  to  maintain  any  complaint  for  such  injury.  It 
was  accordingly  held  that  where,  as  an  inducement  to  the 
owner  of  a  mill-privilege  to  go  on  and  occupy  the  same  by  a 
mill,  a  land-owner,  whose  land  would  thereby  be  flowed, 
orally  agreed  not  to  claim  damages  therefor,  if  such  mill 
were  erected,  it  was  a  bar  to  any  claim  in  his  favor  for  such 
damages,  not  in  the  light  of  a  grant  of  a  right  to  occupy 
lands,  but  of  a  parol  release  of  a  claim  to  recover  a  certain 
amount  of  money  .^ 

But  such  agreement  would  not  run  with  the  estate  so  as 
to  bar  the  claim  of  the  grantee  of  the  land-owner  for  any 
flowing  done  by  the  mill-owner  after  such  grant.^ 

12.  It  is,  however,  proposed  to  consider  this  statute  only 
so  far  as  it  bears  upon  the  right  to  enjoy  what  answers  to 
an  easement  thereby  created  in  another's  land,  and  not  to 
enter  into  any  detail  of  the  forms  of  proceeding  or  the 
mode  of  enforcing  compensation  for  the  injuries  thereby  oc- 
casioned. 

It  not  only  authorizes  one  who  owns  land  upon  both  sides 

1  Wilmarth  v.  Knight,  7  Gray,  294. 

2  Winklcy  v.  Salisbury  Mg.  Co.,  14  Gray,  443. 

8  Smith  V.  Goulding,  6  Gush.  154  ;  Seymour  v.  Carter,  2  Mete.  520;  Clement 
V.  Durgin,  5  Me.  9;  Short  v.  Woodward,  13  Gray,  86. 
*  Fitch  V.  Seymour,  9  Mete.  462.' 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  407 

of  the  stream  on  which  to  erect  a  mill  and  dam  to  do  so,  and 
thereby  raise  a  head  of  water  in  immediate  connection  with 
such  mill,  but  to  do  this  by  way  of  a  reservoir  at  any  dis- 
tance above  his  mill,  upon  the  same  stream,  and 
there  *pen  up  the  water  for  the  use  of  his  mill,  as  [*333] 
he  shall  have  occasion  to  draw  the  same.^ 

13.  But  the  courts  restrict  these  statutes  within  a  pretty 
narrow  construction  of  their  terms,  and  hold  that  this  right 
of  erecting  dams  for  reservoirs  must  be  upon  the  same 
stream  upon  which  the  mill  is  situate.  And  therefore  that, 
where  one  owning  land  on  two  streams  built  his  mill  upon 
one,  and  erected  a  dam  for  a  reservoir  upon  the  other,  and 
conducted  the  water  of  his  reservoir  by  an  artificial  chan- 
nel to  the  pond  of  his  mill,  and  by  the  erection  of  his  dam 
flowed  land  of  another,  he  was  not  justified  in  so  doing  by 
the  statute  relating  to  mills,  but  was  liable  as  at  common 
law.2 

So  where  a  mill-owner  having  a  reservoir  dam  above  his 
mill  upon  the  main  stream  let  out  the  water  thereof  into  the 
plaintiff's  meadow  by  an  artificial  channel,  different  from 
that  through  which  it  naturally  flowed,  and  thereby  flooded 
the  meadow,  he  was  held  liable  in  an  action  of  the  case,  and 
not  protected  by  the  mill  laws,  in  making  such  use  of  the 
water  to  the  plaintiff's  injury .^ 

14.  It  will,  moreover,  be  seen  that,  so  far  from  its  confer- 
ring a  general  right  upon  a  mill-owner  to  flow  the  lands  of 
others,  there  are  several  prerequisites  to  be  established  be- 
fore this  right  can  be  exercised.  And  first,  the  person  claim- 
ing it  must  have  a  water-privilege  on  which  he  has  erected 
a  mill  and  mill-dam.  Thus,  where  the  owner  of  one  half 
the  stream  erected  a  dam  across  the  same  for  a  mill,  and 
abutted  and  built  one  end  of  the  dam  upon  the  land  of  the 
opposite  owner,  without  his  consent,  and  the  latter  after- 

1  Wolcott  IMg.  Co.  V.  Upham,  5  Pick.  292 ;  Fiske  v.  Framingham  Mg.  Co., 
12  Pick.  68;  Shaw  v.  Wells,  5  Cush.  537  ;  Nelson  v.  Butterficld,  21  Me.  220. 
-  B.ites  V.  Weymouth  Iron  Co.,  8  Cush.  548. 
8  Fiske  V.  Framingham  Mg.  Co.,  12  Pick.  68. 


408  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cif.  IIL 

wards  built  a  dam  on  liis  own  land  below,  whicli  in  that 
place  extended  across  the  stream,  and  flowed  out  the  up- 
per dam,  it  was  held  that  the  upper  mill-owner  had 
[*334]  *no  right  to  maintain  his  dam  against  the  consent 
of  the  other  party,  and  that  the  latter  was  justified 
in  erecting  his  dam,  and  submerging  that  of  the  upper  own- 
er, or  he  might  have  taken  down  the  dam,  so  far  as  it  stood 
on  his  land.i 

So  if  there  has  been  an  ancient  mill  upon  a  mill-privilege, 
one  may  not  erect  a  mill  and  dam  below  it  and  submerge  it, 
although  no  mill  may  at  the  time  be  standing  thereon,  pro- 
vided the  owner  of  such  upper  privilege  has  not  abandoned 
it  as  a  mill-privilege.^ 

And  if  one  erects  a  mill-dam  on  his  own  land,  which  flows 
back  water  upon  an  existing  mill,  the  owner  of  the  latter 
may  enter  upon  the  premises  of  the  former,  and  abate  so 
much  thereof  as  may  be  necessary  to  remove  the  impedi- 
ment thereby  occasioned.^ 

So  where  one  erected  his  mill  on  the  stream  and  his  dam 
for  working  it,  and  another  owner  upon  the  same  stream 
then  erected  his  upon  his  own  land  above  it,  the  first  could 
not,  by  afterwards  raising  his  dam,  increase  the  flowing  so 
as  injuriously  to  affect  the  working  of  the  upper  mill.* 

15.  It  may  be  remarked,  in  passing,  that  the  statute  does 
not  extend  to  mills  worked  by  tide-power,  or  what  are  called 
tide-mills.^ 

16.  The  limitations  above  mentioned  are  easily  and  well 
defined,  in  questions  between  new  and  actually  existing 
mills,  and  especially  what  are  called  ancient  mills.  But  a 
class  of  cases  has  arisen,  which  are  not  entirely  free  from 

1  Jewell  V.  Gardiner,  12  Mass.  311. 

2  French  v.  Braintree  Mg.  Co.,  23  Pick.  216  ;  Hatch  v.  Dwight,  17  Mass.  289. 
8  Jewell  V.  Gardiner,  12  Mass.  311 ;  Hodges  v.  Raymond,  9  Mass.  314;  post, 

chap.  G,  sect.  4,  pi.  1. 

*  Sumner  ?;.  Tileston,  7  Pick.  198,203;  Gary  v.  Daniels,  8  Mete.  466;  Vea- 
sie  V.  Dwinel,  .50  Maine,  486. 

'  Murdock  v.  Stickney,  8  Gush.  113. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  409 

difficulty,  when  applying  to  them  the  rules  of  the  statute. 
And  these  are,  where  the  owner  of  a  mill- privilege  may,  for 
instance,  have  taken  steps  towards  occupying  it ;  but  before 
he  shall  have  had  an  existing  mill  thereon,  another 
owner  on  *  the  same  stream  below  him,  by  the  exer-  [*335] 
cise  of  greater  despatch,  or  the  completion  of  a  cheap- 
er and  more  easily  erected  structure,  has  actually  put  a  mill 
in  operation  in  advance  of  the  first.  One  may,  for  example, 
be  an  extensive  cotton  manufactory,  the  other  a  shingle-mill. 
The  question  in  such  cases  has  been,  which  of  the  two  shall 
have  the  prior  right  to  the  privilege,  and  may  the  lower  mill- 
owner  flow  the  land  of  the  upper  proprietor  to  the  sacrifice 
of  his  rights  as  a  mill-owner  ?  Under  the  law  as  it  stood 
before  the  revision  of  the  statutes  in  1836,  it  had  been  held 
that,  if  the  upper  proprietor  had  actually  built  or  was  build- 
ing a  mill  on  his  privilege,  the  lower  proprietor  could  not 
erect  a  new  dam  or  raise  an  old  one  to  its  injury,  for  the  prin- 
ciple seems  to  be  the  same,  so  as  to  destroy  the  upper  mill- 
privjlege,  under  the  protection  and  authority  of  the  mill  acts.^ 

By  an  alteration  in  phraseology  introduced  into  the  revised 
statutes,  nothing  but  an  existing  mill  could  prevent  one  from 
erecting  a  dam  and  mill,  and  flowing  the  land  of  another 
above  him  ;  and  in  one  case  it  was  held  that  he  might  do 
this,  although  the  upper  land-owner  had  begun  to  erect  a 
dam  and  mill  upon  his  own  premises  before  the  lower  owner 
had  begun  the  erection  of  his  works.^ 

But,  by  the  present  form  of  the  statute,  no  one  can  erect  a 
mill-dam  whereby  to  flow  the  land  of  another  to  the  injury 
of  a  mill-privilege  already  occupied,  provided  the  owner 
thereof  completes  such  occupation  by  putting  a  mill  in 
operation  upon  the  same,  within  a  reasonable  time  after 
commencing  such  occupation.^ 

17.  In  the  application  of  this  doctrine  to  practical  uses, 
reference  has  to  be  still  had  to  some  of  the  familiar  prin 

1  Bijielow  V.  Newlmll,  10  Pick.  348. 

2  Baird  v.  Wells.  22  Pick.  312. 

2  Veasie  v.  Dwinel,  50  Maine,  485. 


410  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cir.  III. 

ciples  of  the  common  law.  Before  any  mills  are  erected, 
the  right  of  each  proprietor  is  the  same,  and  that  is  a  right 
to  appropriate  the  power  of  the  stream  by  the  actual  erection 

of  a  mill.     The  necessary  consequence  is,  that,  when 
[*336]   *one  proprietor  under  the  common  right  has  in  fact 

appropriated  the  power,  the  proprietor  below  is  so 
far  restricted  in  his  right  to  do  the  same  that  he  cannot 
erect  a  mill  on  his  own  land,  and  flow  back  water  to  the 
destruction  of  the  mill  already  erected  by  authority  of  law.^ 
18.  But  perhaps  the  best  exposition  of  the  nature  and 
effect  of  this  statute,  considered  in  connection  with  the  com- 
mon-law rights  of  riparian  proprietors  upon  a  stream,  may 
be  found  in  the  opinion  of  Shaw,  C.  J.,  in  Gary  v.  Daniels. 
If,  for  instance,  the  descent  of  the  water  of  a  stream  through 
the  lands  of  several  successive  owners  is  such  as  only  to  sup- 
ply power  for  a  single  mill-privilege,  the  proprietor  who  first 
erects  his  dam  for  the  purpose  of  availing  himself  of  this 
mill  power,  may  claim  it  as  against  the  proprietors,  whether 
above  or  below  him,  upon  the  stream,  and  his  prior  occu- 
pancy gives  him  a  prior  title  to  the  use  of  the  water  for  that 
purpose.  Though  such  an  occupancy  deprives  the  upper  pro- 
prietor of  the  right  to  do  the  same  on  his  own  land  which  he 
otherwise  would  have  had,  it  is  damnum  absque  injuria.  The 
proprietor  below  could  not,  after  such  erection,  raise  a  dam 
upon  his  own  land  so  as  thereby  to  obstruct  the  wheels  of 
the  prior  occupant  above.  Up  to  the  time  of  this  occupation, 
these  rights  were  equal  and  the  same.  But  when  the  first 
occupant  had  made  an  appropriation  of  the  use,  to  that  ex- 
tent he  acquired  a  priority  with  which  the  others  had  no 
right  to  interfere. 

But  this  applies  only  to  the  extent  to  which  he  shall  actu- 
ally have  appropriated  and  occupied  the  stream.  All  the 
surplus  power  may  be  occupied  and  appropriated  by  another 
riparian  proprietor  for  mill  purposes,  in  the  same  manner  as 

1  Gould  V.  Boston  Duck  Co.,  13  Gray,  442,  450  ;  Ilazen  v.  Essex   Co.,  12 
Cush.  475;  Kelly  v.  Natoma  Water  Co.,  6  Cal.  105. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  411 

the  first  bad  a  right  to  occui)y  the  part  he  did.  Nor  can  the 
first  proprietor,  afterwards,  raise  his  dam  to  the  injury  of  the 
second  occupier. 

*As  to  such  surplus,  the  second  occupier  becomes   [*337] 
the  first,  with  all  the  rights  to  the  same  of  a  first 
occupant. 

The  upper  occupant,  though  second  in  point  of  time,  may 
place  his  mill  so  low  that  the  pond  of  the  lower  mill  shall 
flow  upon  its  wheel,  if  he  pleases.  But  he  cannot,  in  that 
case,  complain  of  the  lower  mill  for  setting  bacli  water  upon 
bis  works. 

So  if  the  occupant  leave  a  surplus  of  power  unappropri- 
ated at  first,  he  may  occupy  it  at  any  subsequent  time,  by 
raising  his  dam  or  otherwise,  if  no  one  shall,  in  the  mean 
time,  have  occupied  it.^ 

19.  While  the  effect  to  be  given  to  a  prior  occupation  of 
a  mill-privilege  may  be  considered  as  settled,  there  may  ob- 
viously arise,  at  times,  nice  questions  as  to  precedence  of 
right  between  the  owners  of  two  mill-privileges  upon  the 
same  stream,  where  only  one  can  be  practically  used,  and 
each  has  undertaken  to  gain  this  right  by  prior  occupancy. 
Thus  cases  have  occurred  where  two  parties  have  simulta- 
neously, or  nearly  so,  begun  to  do  acts  in  view  of  occupying 
a  privilege  upon  their  respective  lands.  In  one  case,  one 
proprietor  began  ii>  the  morning  to  cut  brush  growing  upon 
the  spot  on  which  he  was  about  to  erect  a  dam,  and  to  drive 
stakes  at  different  points  on  each  side  of  the  stream,  to  in- 
dicate the  position  and  height  of  the  intended  dam,  and  an 
upper  owner  began  at  noon  to  dig  stones  upon  the  bank  of 
the  stream,  and  to  place  them  in  the  bed  of  the  stream,  as  a 
part  of  the  foundation  of  his  dam.  Both  parties  proceeded 
with  all  reasonable  despatch  to  complete  their  respective 
dams,  and  the  same  were  in  fact  only  a  few  rods  apart.  In 
an  action  by  the  upper  owner  against  the  lower  one  for  flow- 
ing his  land  and  destroying  his  occupied  mill-privilege,  the 

1  Gary  v.  Daniels,  8  Mete.  466,  477. 


412  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

question  was  made,  wliicli  of  the  two  had  the  l^etter  right  by 
prior  occupancy.  A  case  substantially  like  this  was  argued 
before  the  Supreme  Judicial  Court  in  Worcester, 
[*338J  October,  *1833,  and  the  opinion  of  the  court,  given 
by  Shaw,  C.  J.,  though  never  reported,  was  to  the 
effect  that  the  one  who  first  commenced  work,  vpnn  the  soil, 
either  by  cutting  trees,  or  digging  stones  or  earth,  for  the 
purpose  of  actually  building  a  dam,  may  be  deemed  to  have 
first  begun  his  dam.  But  if  the  acts  of  cutting  brush,  set- 
ting stakes,  &c.,  were  for  the  purpose  of  ascertaining  wheth- 
er there  existed  a  fall  of  water,  &c.,  or  whether  the  situation 
was  a  favorable  one  for  the  erection  of  a  mill,  and  the  like, 
it  would  not  be  a  beginning.  These  acts  were  stated  as 
serving  to  point  out  the  line  of  demarcation  where  the  acts 
of  building  began.  That  the  stakes  were  driven  might,  or 
might  not,  be  evidence.  Was  it  a  part  of  the  operation  of 
building-?  If  it  was,  it  would  be  a  beginning.  If  not,  but 
to  show  his  intention,  it  would  not  have  that  effect.^ 

20.  It  may  further  be  remarked,  that  no  preference  which 
may  be  acquired  by  an  actual  appropriation  of  a  water-power 
can  be  gained  by  an  intention  to  appropriate  it,  however 
strongly  expressed.  Nor  will  the  doing  of  an  act  which 
would,  if  so  intended,  be  a  part  of  the  act  of  appropriation 
of  a  power,  such  as  digging  a  trench  in  which  to  conduct 
water,  operate  as  an  appropriation  of  the  same,  unless  done 
with  an  intention  to  have  that  effect.^  But  if  one  begins  a 
dam  in  order  to  appropriate  a  water-privilege,  it  will  give 
him  a  prior  right  to  the  same  in  preference  to  one  who  sub- 
sequently commences  a  dam,  though  he  completes  it  before 
the  first  is  finished,'^ 

If  the  appropriation  be  an  actual  one,  and  to  some  useful 
purpose,  it  secures  the  right  so  far  that  it  may  not  be  in- 
fringed by  a  subsequent  appropriation  by  others.*     But  the 

1  Bemis  i'.  Upliam.     See  Kimball  v.  Gearhart,  12  Cal.  27. 

2  Maeris  v.  BickTiell,  7  Cal.  261. 

3  Kelly  V.  Natoma  Water  Co.,  6  Cal.  105. 
*  M'Kinney  v.  Smith,  21  Cal.  381. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  413 

limit  of  the  claim  wliicli  is  secured  by  an  appropriation,  is 
the  extent  to  which  it  is  actually  made.  If  there  is  any  sur- 
plus, it  is  open  for  others  to  avail  themselves  of  it.^ 

21.  Among  the  restrictions  imposed  by  the  statute  upon 
the  right  of  a  mill-owner  to  flow  the  lands  of  a  riparian  pro- 
prietor, is  that  which  has  already  been  mentioned,  by  which 
it  is  in  the  power  of  a  jury  to  prescribe  how  high,  and  during 
what  portion  of  the  year,  the  flowing  may  be  sustained.  And 
if  in  violation  of  this  limitation  the  mill-owner  shall 

flow  to  *a  higher  point,  or  during  a  greater  portion    [*339] 
of  the  year  than  that  prescribed  by  such  verdict,  he 
will,  as  to  such  excess,  be  subject  to  the  common-law  rights 
and  remedies  of  such  land-owner  for  the  injury  thereby  oc- 
casioned.2 

22.  But  if  one  acquires  a  right  to  flow  the  land  of  another 
during  certain  portions  of  the  year,  or  to  a  definite  height 
by  grant,  and  transcends  this  right,  he  will  for  such  excess 
be  subject  to  the  provisions  of  the  mill  act  for  the  recovery 
of  the  damages  thereby  occasioned.-^  But  it  is  left  doubtful 
whether  a  party  who  has  taken  a  conveyance  defining  his 
right  to  flow  as  to  its  extent,  or  has  agreed  in  a  legal  form  as 
to  the  height  to  which  he  shall  flow  as  a  substitute  for  a 
legal  process,  can,  afterwards,  increase  the  flowing,  and  claim 
for  it  the  protection  or  benefit  of  the  mill  acts  of  Massachu- 
setts.^ 

23.  Another  important  restriction  in  the  right  of  flowing 
lands  is,  that  the  statute  extends  its  protection  only  to  such 
as  are  owners  of  existing  mills,  and  exercise  the  right  for  the 
use  and  operation  of  such  mills.  The  consequence  is,  that 
if  one  has  a  dam,  but  no  existing  mill,  or  if,  having  had  such 
mill,  he  abandons  it,  but  retains  his  dam,  and  lands  of  third 

1  M- Kinney  v.  Smith,  21  CaL  381  ;  Ortman  v.  Dixon,  13  Cal.  33.  , 

2  Hill  V.  Sayles,  12  Mete.  142;  s.  c,  4  Cusli.  .')49 ;  Johnson  v.  Kittredge,  17 
Mass.  76,  80  ;  Wiiikley  v.  Salisbury  Mg.  Co.,  14  Gray,  443;  Gile  v.  Stevens,  13 
Gray,  146. 

8  Tounellot  v.  Thelps,  4  Gray,  370 ;  Judd  v.  Wells,  12  Mete.  504. 
*  Burnham  v.  Story,  3  Alien,  379. 


414  THE    LAW    OF   EASEMENTS    AND    SERVITUDES.         [Cii.  III. 

persons  are  thereby  damaged,  the  owner  of  such  dam  is  liable 
to  actions  at  common  law  in  favor  of  those  whose  lands  are 
injured. 1 

24.  But  though  he  would  lose  the  benefit  of  the  statute  by 
abandoning  his  mill,  yet  if  his  mill  or  his  dam  be  destroyed 
by  flood  or  fire,  or  become  dilapidated  by  age  or  natural  de- 
cay, the  proprietor  will  have  a  reasonable  time  in  which  to 
rebuild  or  repair  the  same,  depending,  as  to  what  that  shall 
be,  upon  the  circumstances  of  each  particular  case.^ 

If  the  mill-owner  cease  to  use  and  occupy  his  land  for 
mill  purposes  beyond  a  reasonable  time,  or  if  he  do  acts  of 
abandonment,  like  removing  his  dam  or  mill,  accompanied 
by  evidence  of  an  express  intent,  like  a  declaration 
[*340]  to  that  *effect,  to  abandon  the  right  of  flowing  an- 
other's land,  it  would  extinguish  his  right  to  do  so 
under  the  statute,  and,  for  any  subsequent  flowing,  he  would 
be  subjected  to  the  liabilities  of  the  common  law. 

How  far  this  would  be  the  effect,  if  such  abandonment 
were  made  by  a  tenant  for  life  or  years  of  a  mill,  so  as  to 
bind  the  rights  of  a  reversioner  or  remainder-man,  or  how 
far  an  infant  would  be  bound  by  such  acts,  after  he  should 
have  arrived  at  age,  may  be  considered  as  questions  not  ne- 
cessarily involved  in  the  above  decision,  which  is  understood 
to  apply  only  to  cases  of  owners  in  fee,  who  are  competent  to 
bind  the  estate.  And  it  may  be  assumed  to  be  a  rule  of  law 
that  such  abandonment  can  only  be  made  by  such  as  have  a 
disposing  power  over  the  estate. 

25.  In  applying  the  doctrine  of  abandonment  to  what 
would  be  regarded  as  sufficient  evidence  of  its  having  been 
made,  it  would  be  deemed  prima  facie  evidence  of  this,  if 
there  had  been  a  discontinuance  of  the  use  for  twenty  years, 
though  even  that  may  be  controlled  by  proof  of  the  existence 

1  Bainl  v.  Hunter,  12  Tick.  5.56;  Slack  v.  Lyon,  9  Pick.  62;  Fitch  v.  Ste- 
vens, 4  Mete.  426;  Sampson  v.  Bradford,  6  Gush.  303;  Farrington  v.  Blish,  14 
Me.  423  ;  Hodges  v.  Hodges,  5  Mete.  205. 

'•^  French  v.  Braintree  Mg.  Co.,  23  Pick.  220 ;  Cowell  v.  Thayer,  5  Mete.  253. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  415 

of  causes,  during  that  time,  which  have  prevented  the  owner 
of  the  privilege  from  exercising  the  act  of  flowing.^ 

So  the  effect  to  be  ascribed  to  a  cesser  to  use  a  right  to 
flow  another's  land,  when  once  acquired,  accompanied  by  a 
declaration  of  intent,  may  depend  upon  the  circumstance 
whether  the  party  causing  it  shall  have  acquired  the  right  to 
do  so  without  payment  of  damages  therefor,  or  wliether  he  is 
subject  to  damages  for  continuing  the  same.  In  the  one 
case,  the  removal  of  his  mill,  and  a  declaration  by  the  mill- 
owner  that  the  privilege  would  not  be  occupied  again,  would 
not  be  deemed  a  legal  abandonment  by  which  his  right  to 
resume  it  at  his  pleasure  was  lost,  whereas,  in  the  other, 
it  would  be  an  abandonment,  and  the  respective  rights  of 
the  land-owner  and  of  the  owner  of  the  privilege 
*would  be  restored  as  they  stood  before  such  right  [*341] 
had  been  acquired.^ 

26.  The  law  authorizing  the  mill-owner  to  flow  another's 
land  by  making  compensation  therefor,  so  far  regards  this 
right  like  a  mere  license,  and  not  an  estate  in  another's  land, 
that  where  a  jury  had  assessed  a  sum  in  gross,  to  be  paid  by 
such  mill-owner  for  the  right  to  flow  the  land  of  the  com- 
plainant for  all  future  time,  and  the  mill-owner,  at  once, 
ceased  to  flow  it,  and,  by  a  written  declaration,  abandoned 
all  right  to  continue  to  flow  the  same,  it  was  held  that  he 
thereby  exonerated  himself  from  liability  to  pay  the  damages 
assessed  for  such  future  flowing.^ 

27.  Nor,  though  the  cases  speak  of  this  right  as  one  of 
perpetual  easement,  is  it,  in  fact,  either  an  easement  in  all 
respects,  or  an  estate  in  another's  land,  for,  in  the  first  place, 
the  land-owner,  if  he  can  do  so,  may  prevent  the  mill-owner 
from  setting  back  the  water  of  his  pond  upon  the  land  of  the 
former  by  erecting   dikes   or   embankments  to   guard   the 

1  French  v.  Braintree  Mg.  Co.,  23  Pick.  220 ;  Hunt  v.  Whitney,  4  Mete.  603  ; 
post,  chap.  5,  sect.  6. 

2  WilHams  v.  Nelson,  23  Picli.  141,  147  ;  French  v.  Braintree  Mg.  Co.,  sujjra ; 
post,  chap.  .5,  sect.  6. 

3  Hunt  V.  Whitney,  4  Mete.  603. 


416      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

same  ;  ^  or  lie  may  occupy  the  water  upon  his  land  by  mak- 
ing a  boom  thereof,  in  which  to  hold  his  logs,  or  may  erect 
piers  therein,  although  he  thereby  diminishes  the  capacity  of 
the  pond  to  contain  a  body  of  water.^  And  such  flowing  is 
never  regarded  a  disseizin  of  the  owner  of  the  land,  nor  an 
interference  with  his  right  to  convey  the  same.^  Nor  does 
an  oral  agreement  of  the  land-owner  with  the  mill-owner, 
not  to  claim  damages,  though  binding  upon  him,  run  with 
the  land,  so  as  to  constitute  an  encumbrance  thereon,  or  pre- 
vent a  grantee  of  such  land-owner  from  claiming 
[*342]  damages  occasioned  by  a  subsequent  flowing  of  *the 
land.*  And  it  may  be  remarked,  that  the  claim  on 
the  one  side  and  the  liability  on  the  other  in  respect  to  dam- 
ages is  so  far  a  personal  one,  that  the  one  is  liable  only  for 
the  time  he  shall  have  owned  the  mill,  and  the  claim  of  the 
other  begins  and  ends  with  his  ownership  of  the  estate.^ 

28.  Another  liinitation  of  the  right  of  a  mill-owner,  in  the 
exercise  of  his  power  to  flow  under  the  statute,  is,  that  he 
holds  it  subject  to  the  public  right  to  use  navigable  streams 
for  purposes  of  highways,^  and  he  may  not  flow  so  as  to  in- 
jure an  existing  highway.' 

29.  Although  the  injuries  thus  far  spoken  of,  as  being  oc- 
casioned by  flowing  under  the  provisions  of  the  mill  acts, 
have  been  chiefly  those  done  to  the  surface  or  the  produc- 
tions of  land,  it  was  held  tliat  where,  by  raising  a  pond  of 
water,  it  set  it  back  through  an  existing  underground  drain 
into  a  cellar,  the  remedy  of  the  person  injured  thereby  was 

1  Williams  v.  Nelson,  23  Pick.   141  ;   Murdock  v.   Stickney,   8   Cush.   116; 
Bates  V.  Weymouth  Iron  Co.,  8  Cush.  548. 

2  Jordan  v.  Woodward,  40  Me.  317. 

8  Charles  i'.  Monson  &  Brimfield  Mg.  Co.,  17  Pick.  70. 
*  Fitch  V.  Seymour,  9  Mete.  462. 

6  Holmes  v.  Drew,  7  Pick.  141 ;  Charles  v.  Monson  &  Brimfield  Mg.  Co., 
supra. 

^  Knox  V.  Chaloner,  42  Me.   l-'JO;  Veasie  v.  Dwinel,  50  Maine,  479,  490; 
Davis  V.  Winslow,  51  Maine,  294  ;  Gerrish  v.  Brown,  lb.  256. 

7  Commonwealth  v.  Stevens,  10  Pick.  247  ;  Andovery.  Sutton,  12  Mete.  182; 
Commonwealth  v.  Fisher,  6  Mete.  433  ;  Treat  v.  Lord,  42  Me.  522,  561. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  417 

under  the  provisions  of  this  act.  And  where  such  flowing 
obstructed  a  drain  which  the  owner  had,  without  right,  en- 
tered upon  the  land  of  the  mill-owner,  the  latter  was  not 
responsible  either  under  the  statute  or  by  the  common  law, 
to  owners  of  cellars  whose  drains  discharged  into  the  first- 
mentioned  drain,  although  by  obstructing  that  the  cellars 
were  injured. ^ 

30.  While  a  mill-owner  may  flow  the  land  of  another 
under  the  statute,  he  is,  in  turn,  protected  from  having  his 
own  mill  injured  by  another  mill-owner  flowing  back  water 
upon  the  same,  if  the  upper  mill  be  the  more  ancient  one.^ 

31.  In  one   important   respect,  the   construction 

given  by  *the  courts  of  Maine  to  the  Mill  Acts  of  that  [*343] 
State  differs  from  that  of  the  courts  of  Massachu- 
setts to  similar  acts  in  the  latter  State.  Thus,  while  in  Mas- 
sachusetts the  act  of  flowing  another's  land  is  in  itself  a  tort 
which  gives  him  a  right  to  maintain  a  complaint  therefor, 
and,  if  continued  for  twenty  years  under  a  claim  of  right, 
acquiesced  in  by  the  land-owner,  will  create  a  prescriptive 
right  to  continue  it,  though  no  actual  appreciable  damage 
shall  have,  thereby,  been  occasioned  to  the  land-owner  ;  ^  in 
Maine,  no  right  to  maintain  a  complaint  exists  until  some 
such  damage  has  thereby  been  occasioned.  Nor  will  any 
prescriptive  right  be  gained  until  twenty  years'  enjoyment 
thereof  by  user,  after  the  flowing  shall  have  begun  to  cause 
damage  to  the  land-owner.  And  inasmuch  as  the  process  by 
complaint  has  superseded  that  at  common  law,  the  owner  of 
land  is  without  remedy  for  the  same  being  flowed,  until  he 
can  show  that  he  has  thereby  sustained  actual  damage.* 

1  Cotton  V.  Pocasset  Mg.  Co.,  13  Mete.  429. 

2  French  v.  Braintree  Mg.  Co.,  23  Piek.  216,  220. 

3  Williams  v.  Nelson,  23  Pick.  141,  145;  Ray  v.  Fletcher,  12  Gush.  200,  206. 
*  Tinkham  v.  Arnold,  3  Me.  120  ;  Hathorn  i'.  Stinson,  10  Me.  224  ;  s.  c,  12 

Me.  183;  Scidensparger  v.  Spear,  17  Me.  123;  Nelson  v.  Buttcrfield,  21   Me. 
220  ;  Wood  v.  Kelley,  30  Me.  47  ;  Wentworth   v.  Sandford  Mg.  Co.,  33  Me. 
547 ;  Burleigli  v.  Lumbert,  34  Me.  322 ;  Underwood  v.  N.  Wayne  Co.,  41  Me. 
291 ;  ante,  chap.  1,  sect.  4,  pi.  33 ;  chap.  3,  sect.  5,  pi.  9. 
27 


418  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cir.  III. 

Nor  would  the  flowing  of  itself  be  presumptive  evidence  of 
damage  done  ;  actual  damage  must  be  sliown.^ 

32.  So  that  if  one  were  to  claim  a  prescriptive  right  to 
flow  land  of  another,  by  twenty  years'  enjoyment,  the  claim 
might  be  met  by  evidence  that  he  had  voluntarily  suspended 
such  flowing  for  one  oi^morc  years,  whereby  the  damage  to 
the  same  was  during  that  time  suspended,  unless  the  sus- 
pension were  accompanied  by  acts  indicating  an  intention  to 
continue  it,  such,  for  instance,  as  being  engaged,  during  the 
time,  in  repairing  the  dam  or  the  like.^ 

33.  These  mill  acts,  and  all  others  of  a  like  character 

made  by  the  several  States  in  derogation  of  the  com- 
[*344]    mon  *  law,  are  necessarily  local  in  their  operation, 

since  no  one  State  can  authorize  its  citizens  to  vio- 
late the  common-law  rights  of  citizens  of  other  States  be- 
yond the  limits  of  its  own  territory.  Thus  where  a  citizen 
of  New  Hampshire  erected  a  dam  upon  his  own  land,  which 
set  back  the  water  upon  the  land  of  another  within  the  State 
of  Maine,  as  the  erection  of  the  mill  and  dam  were  not  au- 
thorized by  the  law  of  Maine,  and  the  land-owner  was  with- 
out remedy  under  the  statute  process  of  that  court,  it  was 
held  that  he  might  maintain  an  action  for  the  injury  thereby 
sustained  at  common  law.^ 

34.  In  United  States  v.  Ames,  Woodbury,  J.  was  inclined 
to  hold  that  the  statute  of  Massachusetts  as  to  mills  did  not 
extend  to  lands  belonging  to  the  United  States,  though  lying 
within  the  limits  of  Massachusetts,  and  such  besides  as  the 
United  States  held  as  purchasers,  and  not  by  the  exercise  of 
eminent  domain,  but  over  which  the  State  had  ceded  the 
jurisdiction.  In  that  case  the  owner  of  a  mill  and  dam 
flowed  lands  belonging  to  the  United  States,  but  never  oth- 
erwise appropriated  to  use.  The  mill  and  dam  stood  witliin 
the  territory  over  which  the  State  retained  its  original  juris- 

1  Glcason  v.  Tuttlc,  46  Mc.  288 ;  Underwood  v.  N.  Wayne  Co.,  supra. 

2  Gleason  v.  Tuttlc,  46  Mc.  288. 

8  Wooster  v.  Great  Falls  Mg.  Co.,  39  Mc.  24G ;  Worster  v.  Winnipiseogee 
Lake  Co.,  5  Fost.  525  ;  Farnum  v.  Blackstone  Canal  Corp.,  1  Sumn.  46. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  419 

diction.  The  point  was  not  settled  by  the  judge,  though  the 
right  thus  to  flow,  ho  says,  "  seems  to  me  to  be  with  diffi- 
culty vindicated."  To  other  minds  it  might  seem  other- 
wise. The  proposition,  it  will  be  perceived,  is  not  that  the 
mill-owner  may  interfere  with  any  mill  or  works  of  the 
United  States,  but  simply  that  he  may,  under  a  general  law 
of  the  Commonwealth,  flow  a  parcel  of  land  which  the 
United  States  holds  within  the  Commonwealth  under  a 
deed  of  purchase.  It  involves  the  question  whether  the 
United  States  holding  lands  within  a  State,  by  purchase, 
are  exempt  from  the  lawful  easements  and  servitudes  to 
which  such  lands  were  subject,  in  respect  to  the  ad- 
jacent *estates  before  and  when  they  purchased  the  [*345] 
same.  Suppose  it  had  been  a  right  of  way,  or  an  an- 
cient channel  by  which  water  flowed  to  a  mill  on  the  adja- 
cent estate,  and  neither  of  these  interfered  with  the  full  en- 
joyment of  the  land,  so  far  as  it  was  needed  for  any  practical 
use  by  the  United  States.  Could  it  make  any  difference 
that  the  jui'isdiction  over  the  territory  had  been  ceded  by  the 
state  ?  That  could  be  done  without  changing  the  property 
or  incidents  of  ownership  in  the  estates  within  the  ceded 
portions  of  the  state. 

Thus,  suppose  A's  grantor,  by  his  mill  and  dam,  had 
flowed  the  land  of  B's  grantor,  for  fifteen  years,  by  paying 
annuiil  damages  therefor,  and  had  been  protected  in  so  do- 
ing by  the  statute.  If  the  state  should  then  cede  simply  the 
jurisdiction  to  the  United  States  over  a  portion  of  its  terri- 
tory, which  should  include  the  estates  of  A  and  B,  would 
the  latter  at  once  be  thereby  clothed  with  common-law  power 
and  rights,  and  have  a  right  of  action  upon  the  case  for  such 
flowing,  against  A,  or  have  a  right  to  abate  his  dam  as  a 
nuisance  ?  In  the  case  reported,  the  statutes  upon  the  sub- 
ject of  mills  were  in  full  force  when  the  United  States  piir- 
chased  the  land,  and  unless  as  purchaser  they  acquired  alto- 
gether better  rights  than  their  vendor  had  to  bestow,  it  is 
not  easy  to  see  how  they  could,  without  some  special  appro- 


420  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

priation  of  the  land  or  water-power  to  use,  exercise  other  or 
different  rights  in  this  respect  from  other  land-holders.  The 
price  they  paid  must  have  been  predicated  upon  the  servi- 
tudes and  inconveniences  under  which  the  vendor  had  hold 
the  land,  as  well  as  the  advantages  or  intrinsic  value  it  may 
have  had.  And  it  is  not  easy  to  see,  upon  equitable  grounds, 
how,  the  moment  the  property  shall  have  passed  hands,  the 
adjacent  owners  should  be  deprived  of  the  incidental  ad- 
vantages which  till  then  belonged  to  their  lands,  while  the 
land  thus  purchased  should  be  relieved  from  its  disadvan- 
tages.^ 
[*346]  *The  reasoning  of  the  court  of  California  seems  to 
be  quite  as  sound,  and  far  more  consonant  with  the 
sense  of  justice  of  a  common  mind,  when  considering  the 
right  in  the  United  States  to  take  gold  or  control  its  disposi- 
tion within  the  territory  incorporated  into  the  State  of  Cali- 
fornia. "  Nor  do  wo  admit  that  the  United  States,  holding 
as  they  do,  with  reference  to  the  public  property  in  the  min- 
erals, only  the  position  of  a  private  proprietor,  with  the  ex- 
emption from  state  taxation,  having  no  municipal  sover- 
eignty or  right  of  eminent  domain  within  the  limits  of  the 
state,  could,  in  derogation  of  the  rights  of  the  local  sover- 
eign to  govern  the  relations  of  the  citizens  of  the  state,  and 
to  prescribe  the  rules  of  property  and  its  mode  of  disposition 
and  tenure,  enter  upon,  or  authorize  an  entry  upon,  private 
property,  for  the  purpose  of  extracting  such  minerals  im- 
bedded in  the  soil,  which  could  only  be  done  by  lessening  or 
destroying  the  value  of  the  inheritance. 

"  The  United  States,  like  any  other  proprietor,  can  only 
exercise  their  rights  to  the  mineral  on  private  property,  in 
subordination  to  such  rules  and  regulations  as  the  local 
sovereign  may  prescribe.  Until  such  rules  and  regulations 
are  established,  the  landed  proprietor  may  successfully  resist 
in  the  courts  of  the  state  all  attempts  at  invasion  of  his 
property,  whether  by  the  direct  action  of  the  United  States, 

1  1  Woodb.  &  M.  76. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  421 

or  by  virtue  of  any  pretended  license  under  tlicir  author- 
ity,"  1 

35,  The  statute  of  Maine  has  one  provision  distinct  from 
any  that  is  found  in  that  of  Massachusetts,  authorizing  a 
mill-owner  to  divert  water  from  a  stream  for  the  purpose  of 
creating  an  operative  power  for  his  mill,  by  means  of  a  canal 
which  shall  not  exceed  one  mile  in  length.  Commissioners, 
moreover,  instead  of  a  jury,  are  appointed,  in  the  first  place, 
to  appraise  the  damages,  and  fix  the  height  to  which  the 
mill-owner  may  flow  back  the  water.^ 

*36.   The  statute  of  Wisconsin  is  so  nearly  in  sub-   [*347] 
stance  like  that  of  Massachusetts,  that  it  is  only  ne- 
cessary to  cite  it.'^ 

37.  In  Rhode  Island,  a  party  aggrieved  by  the  flowing  of 
his  lands,  or  their  being  otherwise  injured  by  the  mill-dam 
of  another,  whether  the  same  are  situate  above  or  below 
such  dam,  may  sue  for  the  same  in  an  action  at  common 
law.  If  he  prevails  in  such  suit,  his  damages  are  to  be  as- 
sessed as  in  Massachusetts,  and,  upon  paying  the  same,  the 
mill-owner  may  continue  to  flow  or  damage  the  plaintiff's 
land.  There  is  also  a  provision  requiring  a  mill-owner  not 
to  detain  the  natural  flow  of  any  stream  more  than  twelve 
hours,  at  any  one  time,  except  on  Sunday,  if  requested 
by  a  mill-owner  below  him  to  suffer  the  natural  flow  of  the 
stream.* 

38.  Under  what  may  be  called  the  Virginia  system  of 
mill  acts,  an  essentially  different  principle  is  involved  from 
that  in  Massachusetts,  in  this,  that  while,  by  the  latter,  the 
mill-owner  acquires,  at  most,  only  an  involuntary  easement 
in  another's  land,  by  the  law  of  Virginia  he  acquires  a  title 
to  the  land  occupied.  And  instead  of  requiring,  as  in  Mas- 
sachusetts, that  the  mill-owner  should  have  so  far  an  entire 

1  Boggs  V.  Merced  Mining  Co.,  U  CaL  279,  235.     See  Hendricks  v.  Johnson, 
6  Port.  472. 

^  Me.  Rev.  Stat.  1857,  c.  92. 

3  Wise.  Rev.  Stat.  1858,  c.  56. 

*  R.  I.  Rev.  Stat.  1857,  c.  88,  p.  215.     See  Mowry  v.  Sheldon,  2  R.  L  369. 


422  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cir.  III. 

mill-privilege  that  his  dam  and  mill  shall  be  erected  on  his 
own  land,  it  authorizes  one  owning  land  upon  one  side  only 
of  a  stream  to  appropriate  land  lying  upon  the  opposite  side, 
upon  which  to  construct  his  dam  and  mill,  by  a  process  of 
law  called  a  condemning'  of  the  land. 

The  general  provisions  of  the  act  are,  that  any  one  own- 
ing land  upon  one  side  of  a  stream,  extending  to  the  thread 
thereof,  or  to  the  opposite  bank,  but  not  the  bank  itself, 
whereby  he  could  build  a  dam  for  occupying  a  mill-site  on 
his  own  land,  may  apply  to  the  court  for  a  writ  of  ad  quod 
damnum,  directed  to  the  sheriff,  under  wliich  a  jury  is  sum- 
moned, who  are  authorized  to  locate  one  acre  of 
[*348]  land  for  *the  purpose,  and  appraise  the  same  at  its 
true  value.  The  jury  may  also  examine  what  lands 
above  or  below  will  probably  be  thereby  overflowed,  and  the 
damage  which  will  thereby  be  occasioned,  and  whether  the 
health  of  the  neighborhood  will  be  thereby  injuriously  af- 
fected. This  may  be  done  with  a  view  of  building  a  mill, 
machine,  engine,  and  dam. 

Similar  provisions  exist,  in  most  respects,  where  the  mill- 
owner  owns  the  land  in  fee  on  both  sides  of  the  stream,  but 
the  erection  of  a  dam  thereon  would  cause  damage  to  the 
owners  of  land  above. 

But  if,  by  the  erection  of  such  dam  and  flowing,  a  head  of 
water  for  the  same,  the  mansion-house,  offices,  curtilage,  or 
garden,  or  orchard  of  another  will  be  overflowed,  or  the 
health  of  the  neighborhood  be  injuriously  affected  thereby, 
the  court  may  not  give  permission  to  erect  the  same.  Upon 
an  adjudication  by  the  court  in  favor  of  the  erection  of  such 
mill,  and  the  payment  by  the  applicant  of  the  assessed  value 
of  tlic  acres  so  appropriated,  and  the  damages  assessed  by 
the  jury,  he  becomes  seized  in  fee  simple  of  the  land  appro- 
priated, and  is  authorized  to  erect  a  dam,  mill,  machine,  or 
engine,  provided  he  begins  them  within  one  year,  and  com- 
pletes Lheni  within  three. 

It  will  he  perceived  that  the  proceedings  as  to  condemning 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  423 

the  land  and  assessing  the  damages  are  all  preliminary  to  the 
erection  of  the  dam  and  mill,  whereas  in  Massachusetts,  until 
the  mill-owner  shall  have  erected  his  dam  and  mill,  he  can- 
not avail  himself  of  the  protection  of  the  statute. 

Provision  is  farther  made  for  a  second  writ  ad  quod  dam- 
num, in  case  tlie  mill-owner  shall  have  occasion  to  increase 
the  extent  of  the  flowing  for  his  mill. 

It  was  a  remark  of  Carr,  J.,  in  view  of  these  statutes, 
that  "  no  man  undertakes  to  build  a  mill  with  us  until  he 
has  obtained  leave  of  the  court  of  the  county  in  which  the 
mill  is  situate."  ^ 

*The    mills  contemplated   by  these   statutes   arc   [*349] 
"  water  grist-mills,  or  other  machine  or  engine  use- 
ful to  the  public."  ^     But  no  power  is  thereby  given  to  the 
court  to  condemn  land  for  a  tail-race  to  a  mill.^ 

In  applying  this  law,  the  court  never  grants  leave  to  erect 
a  second  mill  which  will  destroy  a  privilege  which  they  have 
already  authorized  another  to  occupy.'^ 

39.  There  is  in  Missouri  a  statute  in  most  respects  like 
that  of  Virginia,  extending  to  cases  where  the  applicant  for 
leave  to  establish  a  mill  owns  the  land  upon  both  sides  of  the 
stream,  and  will  thereby  cause  damage  to  the  lands  of  others, 
and  to  those  where  he  owns  only  upon  one  side  of  the  stream. 
And  there  is  a  provision  for  a  penalty  of  double  damages  to 
be  paid  by  any  one  who  shall -have  erected  a  mill  upon  a 
stream  whereby  the  property  of  others  is  injured,  without 
having  first  obtained  permission  of  the  court  to  erect  the 
same,  in  the  manner  prescribed,  or  the  court  may  enjoin  or 
abate  the  same  as  a  nuisance.^ 

40.  While  the  statutes  of  Alabama,  which  were  similar  to 
those  of  Virginia  and  Missouri,  were  considered  as  in  force, 

1  Nichols  V.  Aylor,  7  Leigh,  54G,  562. 

2  Tate's  Dig.  Laws  of  Va.,  1841,  p.  692  ;  Huuter  v.  Matthews,  1  Robins.  Va. 
468. 

3  Coaltcr  V.  Huuter,  4  Rand.  58. 

*  Humes  v.  Shugart,  10  Leigh,  332. 
6  Mo.  Rev.  Stat.  1855,  c.  112. 


424      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  III. 

the  court  held  that,  in  case  of  a  competing  of  two  or  more 
applicants  for  leave  to  erect  mills,  the  first  applicant  ac- 
quired an  inchoate  right  to  preference.^  And  in  a  case  in 
Missouri,  where  S.  and  M.  owned  distinct  mill-sites  upon  the 
same  stream,  at  the  distance  of  a  mile  and  a  half  from  each 
other  ;  but  from  the  nature  of  the  stream,  if  both  were  occu- 
pied, the  lower  one  would  flow  out  the  upper  one,  so  that  a 
preference  must  be  given  to  one  or  the  other,  and  each  made 
application  to  the  court  for  leave  to  occupy  his  site  ;  the  jury 
found  that,  if  the  upper  one  were  occupied,  it  would  damage 
the  land  of  the  lower  one  to  a  small  extent,  while  the 
[*350]  lower  one  if  *occupied  would  not  damage  the  land 
of  any  one,  but  simply  deepen  the  current  of  the 
stream  so  as  to  destroy  the  upper  site  for  mill  purposes,  and 
the  court  granted  the  leave  to  the  lower  site  and  denied  it  to 
the  upper  one.^ 

41.  The  statute  of  Arkansas  is  substantially  the  same 
as  that  of  Missouri.-^  And  the  same  may  be  said  of  that 
of  Kentucky  in  its  general  effect.  But,  among  some  of  its 
provisions,  the  jury  are  limited  to  one  acre  which  shall 
be  needed  for  the  dam,  but  may  condemn  land  for  a  canal 
an  hundred  feet  in  width  above  or  below  the  site  of  the 
mill ;  but,  like  the  statutes  of  Virginia  and  the  other  States 
cited,  they  are  restricted  from  overflowing  any  house,  gar- 
den, or  orchard,  and  from  injuring  any  existing  mill.  Nor 
may  a  mill  be  authorized  to  draw  the  water  away  from  any 
existing  mill,  or  to  injure  the  vested  rights  of  any  one  in  any 
water-works  upon  the  same  watercourse.  The  effect  of  being 
condemned,  upon  the  title  of  the  land  to  which  it  is  applied, 
is  the  same  as  under  the  Virginia  statute.^ 

An  applicant  under  this  statute  must  own  the  land,  in 
fee-simple,  upon  one  or  both  sides  of  the  stream.'^  And  the 
courts  are  very  exact  in  their  requirements  of  such  applicant 

1  Hendricks  v.  Johnson,  6  Port.  472.  2  Hook  v.  Smith,  6  Mo.  225. 

8  Dij?.  Ark.  Stat.  c.  114. 

*  2  Ky.  Rev.  Stat.,  Stant.  ed.  18G0,  c.  67. 

^  Smith  V.  Conncly,  1  Monr.  58. 


Sect.  5.]  SPECIAL   LAWS   AS   TO   MILLS.  425 

to  state  clearly  in  his  petition  the  grounds  upon  which  he 
rests  his  claim  for  the  condemnation  of  another's  land.^ 

42.  The  statute  of  Mississippi  is  like  that  of  Virginia  and 
Missouri  in  all  important  respects.^ 

43.  The  statutes  of  North  Carolina  partake  somewhat 
of  both  those  of  Virginia  and  Massachusetts.  Thus  one 
may,  upon  a  writ  of  ad  quod  damnum,  take  land  of  another 
for  the  purpose  of  erecting  a  dam.  And  if  by  the  erection  of 
a  dam  the  land  of  another  is  flowed  and  damaged, 

*the  land-owner  may  have  his  annual  damages  as-   [*351] 
sessed  by  a  jury  under  a  complaint,  instead  of  main- 
taining an  action  at  common  law  for  a  recovery  of  the  same.^ 

Nor  can  one  whose  land  is  flowed,  maintain  an  action  at 
common  law  for  the  injury  thereby  occasioned,  until  relief 
shall  have  been  sought  by  a  petition  for  annual  damages.'* 

But  he  may  recover  under  the  statute  for  damages  to  his 
land,  by  being  prevented  by  the  dam  of  a  mill-owner  from 
draining  the  same,  although  the  waters  of  the  pond  do  not 
actually  set  back  upon  his  land.^ 

44.  In  most  respects,  the  laws  of  Indiana  and  Illinois 
upon  this  subject  are  like  those  of  Missouri,  giving  the  mill- 
owner  a  right,  upon  a  writ  of  ad  quod  damnum,  to  have  land 
condemned  in  his  favor,  upon  which  to  erect  a  dam,  or  to 
assess  the  damages  to  be  occasioned  to  the  lands  of  others  by 
erecting  a  dam  upon  his  own  land.^  And  those  of  Florida 
are  so  nearly  identical  with  the  statutes  of  Virginia  that  it  is 
unnecessary  to  repeat  them." 

45.  These  proceedings  under  a  writ  of  ad  quod  da?nnum, 
in  which  respect  all  the  States  adopting  the  Virginia  system 
have  the  same  general  form,  being  in  derogation  of  the  com- 

1  M'Afee  v.  Kennedy,  1  Litt.  92. 

2  Miss.  Stat,  Howard  &  Hutchinson's  ed.,  1840,  c.  13. 

3  No.  Car.  Rev.  Code,  1854,  c.  71. 

4  King  V.  Sliufford,  10  Ired.  100. 

^  Johnston  v.  Roane,  3  Jones,  Law,  523. 
6  1  Ind.  Rev.  Stat.  1852,  c.  48  ;  111.  Stat.,  ed.  1858,  p.  768. 
:    7  Thomp,  Dig.  Flor.  Laws,  p.  401. 


426       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cu.  III. 

mon-law  rights  of  the  parties  injured  by  the  loss  of,  or  dam- 
age to,  his  land,  must  be  strictly  pursued,  or  the  injured 
party  is  remitted  to  his  remedy  at  common  law.^ 

And  though,  where  such  proceedings  have  been  regularly 
conducted,  a  judgment  in  the  writ  of  ad  quod  damnum  would 
be  conclusive  upon  the  subject  of  the  damages  therein  pro- 
vided for,  it  has  been  held,  in  Indiana,  that  such  assess- 
ment will  not  affect  the  remedy  of  an  injured  party 
[*352]  *  for  an  injury  which  was  not  foreseen  or  estimated 
by  the  jury  .2 

And  so  important  is  it  that  one  should  have  obtained  au- 
thority from  the  court  for  erecting  a  mill  and  dam,  in  order 
to  avail  himself  of  the  protection  of  the  law  in  respect  to  the 
same,  that  where  one  had,  without  preliminary  proceedings, 
begun  to  erect  a  dam  and  mill,  and  another  obtained  leave 
of  court  upon  a  writ  of  ad  quod  damnum^  and  proceeded  to 
erect  a  dam  and  mill  below  the  first,  it  was  held  that,  though 
subsequent  in  time,  he  was  thereby  prior  in  right,  and  might 
go  on  and  flow  out  the  works  of  the  upper  owner.^ 

But  in  Kentucky,  where  a  mill  had  stood  thirty-three 
years,  the  unobstructed  use  of  it  during  that  time  was  held 
to  raise  a  legal  presumption  that  it  was,  originally,  legally 
established.* 

46.  To  complete  what  is  intended  to  be  said  of  these  local 
statutes,  it  may  be  repeated,  that  the  statutes  of  Alabama, 
which  were  substantially  like  those  of  Virginia,  were  de- 
clared unconstitutional  by  the  courts  of  that  State,  so  far  as 
they  relate  to  taking  the  lands  of  one  man  for  the  use  of  an- 
other.^ And  a  statute  in  Maryland,  which  had  existed  for 
many  years,  authorizing  any  person  desirous  of  establishing 

1  Hendricks  v.  Johnson,  6  Port.  472  ;  Shackleford  v.  Coffey,  4  J.  J.  Marsh. 
40 ;  Wolf?;.  Coffey,  Ibid.  41.     See  Garrett  v.  Bailey,  4  Harrin^t.  197. 

^  Keplcy  V.  Taylor,  1  Blackf.  492 ;  Smith  v.  Olmstead,  5  Blackf.  37 ;  Bell  i\ 
Elliott,  .5  Blackf.  11.3. 

8  Hendricks  v.  Jolinson,  supra. 

*  M'Dougle  V.  Clark,  7  B.  Monr.  448. 

^  Sadler  v.  Langliain,  34  Ala.  311. 


Sect.  C]  EIGHTS   IN   KAIN   AND    SURFACE    WATER.  427 

a  forging  mill,  to  apply  for  a  writ  of  ad  quod  damnum,  and 
under  it  to  have  an  hundred  acres  of  land  condemned  to 
him  for  that  purpose,  was  repealed  in  1822. ^ 


♦SECTION   VI.  [*3o3] 

OF   RIGHTS   IN  RAIN  AND   SURFACE   WATER. 

1.  Rain  and  surface  water  flowing  from  a  higher  to  a  lower  field. 

2.  Case  of  Martin  v.  Riddle.     As  to  the  law  in  such  case. 

3.  Easement  and  servitude  of  water  between  upper  and  lower  fields. 

4.  Case  of  Kauffman  v.  Griesemer,  illustrating  this  doctrine. 

5.  Law  of  Louisiana  on  the  same  subject. 

6.  How  far  the  rule  in  such  cases  applies  in  cities. 

7.  How  far  upper  owner  may  deprive  lower  of  surface  w^ater. 

8.  Case  of  Broadbent  v.  Rarasbotham.     On  same  subject. 

9.  Case  of  Rawstron  v.  Taylor.     Right  to  drain  upper  field. 

10.  Rule  as  to  right  to  divert,  if  spring  become  a  stream. 

11.  Case  of  Luther  v.  Winnisimmet  Company.     As  to  rights  in  surface  water. 

1.  Before  proceeding  to  consider  the  law  as  to  water  per- 
colating through  the  earth,  beneath  its  surface,  it  is  neces- 
sary to  refer  to  a  few  principles  which  seem  now  to  be  pretty 
well  settled  as  to  the  respective  rights  of  adjacent  land-own- 
ers, in  respect  to  waters  which  fall  in  rain,  or  are  in  any 
way  found  upon  the  surface,  but  not  embraced  under  the 
head  of  streams  or  watercourses,  nor  constituting  permanent 
bodies  of  water,  like  ponds,  lakes,  and  the  like.  It  may  be 
stated  as  a  general  principle,  that,  where  the  situation  of  two 
adjoining  fields  is  such  that  the  water  falling  or  collected  by 
melting  snows,  and  the  like,  upon  one,  naturally  descends 
upon  the  other,  it  must  be  suffered  by  the  lower  one  to  be 
discharged  upon  his  land  if  desired  by  the  owner  of  the 
upper  field.  But  the  latter  cannot,  by  artificial  trenches  or 
otherwise,  cause  the  natural  mode  of  its  being  discharged  to 
be  changed  to  the  injury  of  the  lower  field,  as  by  conducting 

1  Binney's  case,  2  Bland,  Ch.  99,  116. 


428  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

it  by  new  channels  in  unusual  quantities  on  to  particular 
parts  of  the  lower  field. ^ 

This  question  has  arisen  in  several  different  forms, 
[*354]  and  *the  law  upon  the  subject  can  be  best  illustrated 
by  referring  to  some  of  the  decided  cases. 
2.  In  Martin  v.  Riddle,  there  were  adjacent  parcels  of 
land  belonging  to  the  plaintiff  and  defendant,  that  of  the  de- 
fendant being  upon  a  lower  level  than  that  of  the  plaintiff. 
The  water  that  fell  upon  the  plaintiff's  land  in  rain,  as  well 
as  that  arising  from  certain  springs  in  the  same,  found  their 
way  along  a  natural  channel  from  the  plaintiff's  on  to  the 
defendant's  land.  A  proprietor  upon  the  slope  of  the  accliv- 
ity above  the  plaintiff's  la;id  opened  certain  other  springs 
in  his  land  by  excavating  the  earth,  the  water  from^which 
found  its  way  into  the  plaintiff's  land,  and  thence  through 
this  natural  channel  to  the  defendant's  land,  increasing  the 
quantity  usually  flowing  therein,  and  injuring  the  defend- 
ant's land.  In  order  to  prevent  this,  the  defendant  con- 
structed an  embankment  across  this  natural  channel,  and 
thereby  prevented  the  water  from  flowing  from  the  plain- 
tiff's land,  and  for  this  he  brought  his  action.  It  was  held, 
that,  while  the  owners  of  land  are  entitled  to  the  benefit  of 
waters  natu^'.ally  running  to  the  same,  they  are  bound  to 
bear  the  inconvenience  thereof,  if  any,  and  that  living  springs 
are  to  be  suffered  to  flow  in  their  natural  channel,  and  may 
not  be  stopped  by  one  proprietor  to  the  injury  of  another. 
In  general,  the  same  rule  applies  to  rain-water  as  to  living 
springs,  in  respect  to  its  draining  from  lands  upon  which  it 

1  Ante,  chap.  3,  sect.  1,  pi.  7  ;  Pardessus,  Traite  des  Servitudes,  130;  3  Toul- 
lier,  Droit  Civil  Fran9ais,  374,  ed.  1824.  There  is  a  statute  in  Massachusetts 
which  authorizes  the  owner  of  a  swamp  or  meadow,  under  certain  limitations,  to 
construct  a  drain  or  ditch  from  his  own  across  the  land  of  an  adjacent  owner  for 
the  purpose  of  draining  the  same.  But  this  extends  only  to  the  draining  one's 
land  tlirough  another's  to  a  pond  or  stream  capable  of  receiving  the  water,  without 
causing  injury  to  his  neighbor's  land.  It  does  not  authorize  his  conducting 
the  water  from  his  own  land  on  to  that  of  his  neighbor  to  its  injury.  He  would 
be  liable  to  an  action  for  so  doing.  Gen.  Stat.  c.  148 ;  Sherman  v.  Tobey,  3 
Allen.  7. 


Sect.  6.]  EIGHTS   IN   RAIN   AND   SURFACE   WATER.  429 

falls,  a  lower  field  being  subject  to  the  flow  of  such  water 
from  the  higher  one.  Nor  may  the  owner  of  the  lower  one 
construct  embankments  which  will  prevent  this.  On  the 
other  hand,  the  owner  of  the  upper  field  may  not  construct 
drains  or  excavations  so  as  to  form  new  channels  on  to  the 
lower  field,  nor  can  he^icollect  the  water  of  several  channels 
and  discharge  it  on  to  the  lower  field  so  as  to  increase  the 
wash  upon  the  same.  He  may,  however,  make  whatever 
drains  in  his  own  land  arc  required  by  good  husbandry, 
either  open  or  covered,  and  may  discharge  these  into  the 
natural  channel  or  channels,  even  though  by  so  do- 
ing he  *increases  the  quantity  flowing  therein.  And  [*355] 
if  there  is  any  difficulty  in  ascertaining  what  the  nat- 
ural channel  is,  that  will  be  taken  to  be  such  in  which  the 
water  has  been  accustomed  to  flow  for  the  period  requisite 
to  acquire  a  prescriptive  right.  But  if  the  owner  of  the 
upper  field  throw  an  unnatural  quantity  of  water  upon  the 
lower  one,  he  may  not  stop  it  altogether,  if,  in  so  doing,  he 
throws  back  the  water  upon  the  land  of  an  intermediate  pro- 
prietor, as,  in  the  present  case,  the  increase  was  occasioned 
by  the  act  of  a  more  remote  proprietor.  And  the  court  held 
the  defendant  in  the  action  liable  for  creating  the  obstruc- 
tion complained  of.^ 

3.  The  owner  of  the  upper  field,  in  such  a  case,  has  a 
natural  easement,  as  it  is  called,  to  have  the  water  that  falls 
upon  his  own  land  flow  off  the  same  upon  the  field  below, 
which  is  charged  with  a  corresponding  servitude,  in  the 
nature  of  dominant  and  servient  tenements.^     It  may  be  dif- 

1  Martin  v.  Riddle,  26  Penn.  St.  415,  in  note;  3  Toullier,  Droit  Civil  Fran- 
9ais,  356  ;  Miller  v.  Laubach,  47  Penn.  155. 

2  Laumier  v.  Francis,  23  Mo.  181  ;  Bellows  v.  Sackett,  15  Barb.  96,  102  ; 
Code  Nap.,  Art.  640 ;  Ersk.  Inst.  352,  fol.  ed.  ;  Orleans  Navigation  Co.  v. 
Mayor,  &c.,  2  Mart.  214,  232;  Adams  v,  Harrison,  4  La.  Ann.  165;  Lattimore 
V.  Davis,  14  La.  161  ;  Hays  v.  Hays,  19  La.  351  ;  Kauffman  v.  Gi'icsemer,  26 
Penn.  St.  407,  413. 

The  same  rule  applies  to  all  matters  which,  from  the  relative  situation  of 
two  estates,  are  naturally  cast  from  the  one  upon  ilie  other,  such  as  rocks, 
slides  of  earth,  and  the  like,  falling  from  a  higher  upon  a  lower  parcel.     The 


430  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  Ill, 

ficult  to  reconcile  what  is  here  said  with  some  of  the  posi- 
tions to  be  found  in  an  earlier  part  of  this  work  (p.  *211  et 
seq.'),  especially  the  language  of  the  court  of  Massachusetts, 
that  "  the  obstruction  of  surface  water  or  an  alteration  in  the 
flow  of  it  affords  no  cause  of  action  in  behalf  of  a  person 
who  may  suffer  loss  or  detriment  therefrom,  against  one  who 
does  no  act  inconsistent  with  the  due  exercise  of  dominion 
over  his  own  soil."  ^  But  the  doctrine  as  above  stated  is 
in  accordance  with  recent  opinions  of  some  of  the  American 
Courts.  Thus  in  Beard  v.  Murphy ,2  the  defendant  stopped 
the  surface  flow  from  the  plaintiff's  land  on  to  his  by  a  l)ar- 
rier  of  boards  and  clay  upon  the  defendant's  land.  The 
court  say  "  the  plaintiff  claimed,  that,  if  the  surface  water 
naturally  falling  on  his  land  would  run  off  upon  the  defend- 
ant's land,  the  defendant  had  no  right  to  put  up  any  obstruc- 
tion to  prevent  its  continuing  to  do  so."  "  This  the  court 
granted  and  charged  to  be  law."  But  inasmuch  as  what 
the  defendant  did  was  to  prevent  filthy  water  flowing  from 
plaintiff's  house  into  his  well,  it  was  held  that  he  was  justi- 
fied in  stopping  the  same,  although  he,  at  the  same  time, 
stopped  some  of  the  natural  flow  of  proper  surface  water. 
On  the  other  hand,  the  owner  of  an  upper  parcel  cannot  drain 
the  water  that  stands  thereon  by  artificial  channels  on  to  a 
lower  one  belonging  to  another  witliout  his  consent.  This 
was  the  point  in  Miller  v.  Lauback.  The  owner  may  drain 
his  land  by  ditches  within  his  land,  for  agricultural  purposes, 
but  one  owner  has  no  right  to  insist  that  another  shall  suffer 
the  water  in  his  land  to  percolate  and  come  into  that  of  the 
former  though  it  would  be  for  his  benefit.^ 

lower  tenement  in  such  case  is  obliged  to  receive  what  is  thus  cast  upon  it, 
though  tlie  owner  tlicreof  may  protect  it,  if  possible,  by  works  of  art,  to  guard 
against  injuries  therel)y  occasioned.     3  TouUier,  Droit  Civil  Fran^ais,  356. 

Tlie  owner  of  the  upper  tenement  may  by  prescription  acquire  a  right  to 
roll  the  stones  from  his  land  ui)on  that  of  his  neighbor.  But,  without  gaining 
such  a  right,  he  may  not  cause  those  upon  his  land  to  roll  on  to  that  of  his 
neighbor.     2  Fournel,  Traitc  du  Voisinage,  177. 

1  Gannon  v.  Ilargadon,  10  Allen,  110. 

^  Beard  v.  Miirpby,  37  Verm.  104.     Sec  also  Miller  v.  Laul)ach,  47  Pcnn.  155. 

'^  Buff'um  V.  Harris,  5  It.  I.  253. 


Sect.  C]  RIGHTS   IN   RAIN   AND    SURFACE   WATER.  431 

And  the  prevailing  doctrine,  applicable  to  cases  like  these, 
seems  to  be  this,  if,  for  purposes  of  improving  and  cultivat- 
ing his  land,  a  land-owner  raises  or  fills  it,  so  that  the  water 
which  falls  in  rain  or  snow  upon  an  adjacent  owner's  land, 
and  which  formerly  flowed  on  to  the  first-mentioned  parcel, 
is  prevented  from  so  doing,  to  the  injury  of  the  adjacent 
parcel,  the  owner  of  the  latter  is  without  remedy,  since  the 
other  party  has  done  no  more  than  he  had  a  right  to  do.  It 
was  accordingly  held  in  Bentz  v.  Armstrong,  that  where 
several  owners  of  house  lots  on  which  houses  had  been 
erected,  divided  them  into  separate  estates,  each  parcel  was 
to  take  care  of  the  surface  water  which  gathers  upon  it, 
without  its  flowing  from  the  one  on  to  the  other. ^  And  in  a 
recent  case  in  New  York,  the  court  say,  "  I  know  of  no  prin- 
ciple which  will  prevent  the  owner  of  land  from  filling  up 
the  wet  and  marshy  places  on  his  own  soil  for  its  ameliora- 
tion and  his  own  advantage,  because  his  neighbor's  land  is 
so  situated  as  to  be  incommoded  by  it.  Such  a  doctrine 
would  militate  against  the  well-settled  rule,  that  the  owner 
of  land  has  full  dominion  over  the  whole  space  above  and 
below  the  surface."  ^ 

4.  This  matter  is  further  treated  of  in  KaufTman  v.  Griese- 
mer,  above  cited,  in  which  case  there  was  a  spring  of  water 
upon  the  plaintiff's  land,  which,  as  well  as  the  rain  that  fell 
upon  his  field  which  sloped  towards  the  defendant's 
land,  *found  its  way  to  a  point  near  the  land  of  the  [*356] 
defendant,  but  was  prevented  from  flowing  upon  it, 
by  a  small  natural  elevation  or  rise  in  the  land,  except  in 
times  of  freshets.  The  plaintiff"  dug  a  channel  through  this 
elevated  portion  of  his  land  into  the  defendant's  land,  where- 
by the  water  from  the  land  of  the  plaintiff  flowed  on  to  that 
of  the  defendant.  To  prevent  this,  the  latter  created  an  ef- 
fectual obstruction,  whereby  the  discharge  of  the  water  from 

1  Bentz  V.  Armstrong,  8  W.  &  Serg.  40. 

2  Goodale  v.  Tuttle,  29  N.  Y.  467.     See  also  Frasier  v.  Bro\ni,  12  Ohio  St. 
300.     See  }wst,  p.  *357. 


432  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         tCi'-  HI- 

the  plaintiff's  land  was  prevented,  except  in  times  of  freshet. 
The  court  held,  in  accordance  with  the  doctrine  of  Martin  v. 
Riddle,  above  cited,  that,  though  a  man  may  drain  his  own 
land  by  discharging  the  water  in  the  channels  through  which 
it  naturally  flows,  and  may  clear  the  impediments  in  a  stream 
within  his  own  land,  though  the  effect  should  be  to  increase 
the  quantity  of  water  flowing  through  these  channels  upon  the 
land  of  a  neighboring  proprietor,  he  has  no  right  to  dig  an 
artificial  ditch  or  drain  whereby  to  conduct  the  water  from 
his  own  land  upon  that  of  another  in  any  but  its  natural 
course.  And,  consequently,  that  in  the  present  case  the  de- 
fendant was  justified  in  creating  the  obstruction  he  did  to  the 
flow  of  the  water  in  this  ditch.  And  not  only  so,  but  so  far 
as  the  defendant's  land  was  upon  a  higher  level  than  a  part 
of  the  plaintiff's,  he  had  a  right  to  have  the  water  flow  from 
his  land  upon  that  of  the  plaintiff.  The  language  of  the 
court  upon  the  subject  is  :  "  Because  water  is  descendible  by 
nature,  the  owner  of  a  dominant  or  superior  heritage  has  an 
easement  in  the  servient  or  inferior  tenement  for  the  dis- 
charge of  all  waters  which  by  nature  rise  in  or  flow  or  fall 
upon  the  superior."  The  limit  or  extent  to  which  this  re- 
mark reaches  is  indicated  by  the  language  of  the  court,  who 
add :  "  This  obligation  "  (to  receive  the  water  flowing  from 
the  superior  heritage)  "  applies  only  to  waters  which  flow 
naturally  without  the  art  of  man ;  those  which  come  from 
springs,  or  from  rain  falling  directly  on  the  heritage,  or  even 

by  the  natural  dispositions  of  the  place,  are  the  only 
[*357]   ones  to  which  this  expression  of  the  law  can  be  *ap- 

plied This  easement  is  called  a  servitude  in 

the  Roman  law."  ^ 

5.  The  courts  of  Louisiana  agree  with  that  of  Pennsyl- 
vania in  limiting  this  servitude  in  the  lower  heritage  to  the 
water  that  nalurally  runs  from  the  superior  one,  and  only 

1  Kauflman  v.  Giicsemer,  26  Penn.  St.  407,  413  ;  5  Duranton,  Cours  de  Droit 
Fran(;ais,  167  ;  ante,  pp.  *15,  *226 ;  Pardessus,  Traite  dcs  Servitudes,  §  86,  pp. 
119-122;  Ibid.,  §  92,  pp.  1 30,  1 33. 


Sect.  C]  RIGHTS   IN  KAIN  AND   SURFACE   WATER.  433 

where  the  industry  of  man  has  not  been  employed  to  create 
the  servitude.  And  wliilo  the  lower  heritage  may  raise  no 
obstruction  to  the  flow  of  the  water  to  tliis  extent,  the  supe- 
rior one  may  do  nothing  to  render  the  servitude  more  bur- 
densome, though  this  does  not  prohibit  fitting  the  same 
for  agricultural  uses  by  clearing  it,  or  constructing  proper 
ditches  and  canals  for  that  purpose,^ 

The  lower  owner,  however,  is  not  obliged  to  open  ditches 
on  his  own  land  to  draw  off  the  water  from  his  neighbor's 
land.2  Nor  to  suffer  the  upper  owner  to  cut  ditches  in  his 
land,  and  thereby  drain  tlie  upper  lot  into  a  canal  in  the 
lower  one.^ 

6.  But  it  would  seem  that  this  doctrine  of  a  lower  estate 
owing  servitude  to  a  superior  one,  to  receive  the  water  that 
falls  upon  the  latter,  and  would  naturally  flow  therefrom  to 
the  former,  does  not  apply  to  house-lots  in  towns  and  cities, 
where  the  same  have  been  occupied  by  the  erection  of  houses 
thereon.  In  such  cases  each  proprietor  must,  if  the  same 
can  be  done,  so  grade  his  lot  as  not  to  throw  the  water  which 
collects  upon  the  same  upon  the  adjacent  lot.  This  question 
arose  in  the  city  of  Pittsburg,  in  the  case  of  Bentz  v.  Arm- 
strong, where  two  proprietors  of  a  lot  made  partition  thereof 
into  two,  each  taking  one  of  these.  There  was  a  spring  of 
water  upon  one  of  them,  which,  together  with  the  rain,  as 
it  fell,  naturally  flowed  from  it  upon  the  other  lot,  and  the 
owner  of  the  latter,  in  order  to  prevent  this,  raised  an  em- 
bankment upon  his  land,  which  caused  this  water  to  set  back 
into  the  cellar  upon  the  lot  in  which  it  originated. 
*The  court  held  that  he  had  a  right  so  to  do,  and  [*358] 
that  it  was  the  duty  of  the  owner  of  the  upper  lot  to 

1  Martin  v.  Jett,  12  La.  504  ;  Orleans  Navigation  Co.  v.  Mayor,  &c.,  .3  Mart. 
214,233;  Delahoussaye  y.  Judice,  13  La.  Ann.  587;  La.  Civ.  Code,  Art.  656 ; 
Code  Nap.,  Art.  640;  5  Duranton,  Cours  de  Droit  Fran9ais,  167;  Pardessus, 
Traite' des  Servitudes,  §§  85,  86;  Lattimore  v.  Davis,  14  La.  161;  Hebert  v. 
Hudson,  13  La.  54.  See  also  Earle  v.  De  Hart,  1  Beasl.  280 ;  ante,  chap.  3, 
sect.  1,  pi.  7. 

2  Goodale  v.  Tuttle,  Sup. 

3  Minor  v.  Wright,  16  Louis.  An.  151. 

28 


434  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

drain  the  same  into  the  common  sewer,  if  there  was  one,  or 
in  some  other  way,  if  possible,  to  relieve  the  adjacent  house- 
lot.i 

But  in  a  case  in  New  Jersey,  where  the  land  lay  in  Eliza- 
beth City,  and  the  waters  that  were  accustomed  to  collect 
upon  its  surface  from  rains,  &c.,  were  accustomed  to  flow 
over  the  defendant's  land  by  an  ancient  watercourse,  it  was 
held  that,  though  within  a  city,  he  had  no  right  to  stop  such 
watercourse.  "  To  have  this  water  discharged  upon  the 
complainant's  land  is  as  great  an  injury  to  her  building  lot 
as  it  is  to  the  defendant's  lot  to  have  it  discharged  there. 
There  can  be  no  such  difference  in  the  application  of  the 
law  as  to  building  lots  as  will  impose  a  burden  upon  one 
which  properly  and  of  right  belongs  to  another."^ 

In  that  case  it  was  held  to  make  no  difference  in  the 
rights  of  the  parties  that  the  complainant  might  at  small  ex- 
pense turn  the  water  so  as  not  to  flow  on  to  the  defendant's 
land.     She  was  not  bound  to  do  it. 

7.  In  considering  the  subject  of  surface  water,  thus  far, 
reference  has  been  chiefly  had  to  the  right  of  the  superior 
land-owner  to  claim,  in  the  nature  of  a  servitude  in  the  land 
below,  the  right  to  have  such  water  discharged  thereon,  as 
an  easement  belonging  to  the  upper  tenement.  But  the  sub- 
ject admits  of  another  view,  and  that  is,  how  far  the  owner  of 
the  upper  tenement  may  use  and  apply  such  water  upon  his 
premises,  and  deprive  the  lower  tenement  of  any  benefit 
which  might  otherwise  result  to  the  same  by  such  water  find- 
ing its  way  over  or  through  the  earth  to  such  lower  tene- 
ment, provided  it  be  not  in  the  form  of  a  proper  watercourse. 
Thus  there  are  often  more  or  less  extensive  tracts  of  land 
in  which  water  rises  or  collects  in  a  stagnant  state,  form- 
ing swamps  or  swails,  and  which  occasionally  con- 
[*359]  *tribute  to  the  supply  of  running  streams  upon  the 
land  of  others  by  overflowing  or  soaking  through 

1  Bentz  V.  Armstrong,  8  Watts  &  S.  40. 

2  Earic  V.  Dc  Iltirt,  1  Bcasl.  280. 


Sect.  6.]  RIGHTS   IN   RAIN   AND   SURFACE   WATER.  435 

the  intermediate  soil.  And  attempts  have  been  made  by 
those  interested  in  such  streams  to  prevent  the  owner  of  the 
land  on  which  such  waters  have  collected  from  interrupting 
their  transit  into  the  stream. 

But  water,  whether  it  has  fallen  as  rain  or  has  come  from 
the  overflow  of  a  pond  or  a  swamp,  which  sinks  into  the  top- 
soil  and  struggles  through  it,  following  no  defined  channel, 
is  deemed,  by  law,  absolutely  to  belong  to  the  owner  of  the 
land  upon  which  it  is  found,  for  the  purpose  of  enabling  him 
to  cultivate  his  land  by  controlling  or  draining  it  off'  in  the 
mode  most  convenient  to  him. 

But  the  right  of  the  owner  of  such  land  over  the  water 
therein,  is  not  affected  by  any  right  in  the  owner  of  an  ad- 
joining river,  pond,  or  tank  which  it  may  chance,  for  the 
time,  to  feed,  though  that  time  has  been  ever  so  long  pro- 
tracted. It  is,  in  the  eye  of  the  law,  as  well  as  of  common 
sense,  the  moisture  and  a  part  of  the  soil  with  which  it  inter- 
mingles, to  be  there  used  by  the  owner  of  the  soil  if  to  his 
advantage,  or  to  be  got  rid  of  if  he  pleases,  if  it  is  to  his  det- 
riment.^ 

8.  One  of  these  cases  was  Broadbent  v.  Ramsbotham. 
The  plaintiff  owned  a  mill,  which  had  been  operated  for 
fifty  years  by  the  waters  of  a  natural  stream  which  flowed 
along  the  foot  of  a  range  of  hills,  upon  the  side  of  one  of 
which  was  the  farm  of  the  defendant.  On  this  farm  there 
were  bog^g-y  places  in  which  water  collected  from  the  want 
of  proper  drainage.  And  on  another  part  of  this  slope  was  a 
swamp  occasioned  by  a  small  ridge  of  land  which  prevented 
the  surface  water  from  flowing  into  the  valley,  and  in  this 
water  was  generally  to  be  found. 

There  were  two  or  more  wells  upon  the  premises,  which 
were  supplied  from  these  marshy  and  swampy  places,  and  by 
subterranean  waters,  and  occasionally  overflowed,  and  the 
water  thereof  ran  into  the  stream,  but  not  in  a  defined  chan- 
nel.    The  defendant  constructed  several  drains  in  his  land, 

1  Buifum  V,  Harris,  5  R.  I.  253  ;  ante,  p.  *2II. 


436  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cir.  III. 

and  partly  filled  up  the  swamp  and  some  of  the  wells,  the  effect 
of  which  was  to  prevent  the  water  that  fell  upon  these  slopes 
of  the  hills,  or  were  collected  in  these  swampy  places,  or 
in  these  wells  from  underground  sources,  from  penetrating 
into  or  flowing  over  the  land  and  reaching  the  stream  as  it 
had  formerly  done.  And  for  this  diversion  the  plaintiff 
brought  his  action. 

The  court  held  that  the  plaintiff's  rights  were  limited  to 
"  the  flow  of  water  in  the  stream  itself,  and  to  the  water 
flowing  in  some  defined,  natural  channel,  either  subter- 
ranean or  on  the  surface,  communicating  directly  with  the 
brook  itself.  No  doubt  all  the  water  falling  from  heaven, 
and  shed  upon  the  surface  of  a  hill,  at  the  foot  of  which  a 
brook  runs,  must  by  the  natural  force  of  gravity  find  its 

way  to  the  bottom,  and  so  into  the  brook ;  but  this 
[*360]    does  not  *prevent  the  owner  of  the  land  on  which 

this  water  falls  from  dealing  with  it  as  he  may 
please,  and  appropriating  it "  before  it  arrives  at  some  natu- 
ral channel  already  formed.  They  held  that  the  owner  of 
the  soil  had  a  right  to  drain  the  shallow  pond  at  his  pleas- 
ure. The  same  was  true  of  the  boggy  or  swampy  place  in 
which  the  water  formerly  stood,  nor  did  it  make  any  differ- 
ence that  there  must  have  been  subterranean  courses  con- 
necting these  with  the  stream,  since  they  were  not  traceable, 
nor  did  the  fact  that  one  of  the  wells  sometimes  overflowed 
affect  the  defendant's  right  to  control  or  divert  the  water  in 
it.  And  as  to  the  other  well,  which  occasionally  overflowed, 
and  the  water,  when  it  did,  spread  itself  upon  the  surface, 
and  did  not  form  any  natural  channel  until  it  reached  the 
valley,  ib  was  held  that  the  defendant  had  a  right  to  appro- 
priate and  divert  the  same  at  any  time  before  they  had 
reached  the  valley  and  formed  themselves  into  a  natural 
channel.^ 

In  one  case  the  owner  of  a  parcel  of  land  in  whicli  was 
a   spring  whicli  had  a  defined  outlet  or  fountain,  sold  the 

1  Broadbent  v.  Kamsbotham,  11   P^xcli.  G02. 


Sect.  C]  RIGHTS  IN   RAIN   AND   SURFACE   WATER.  437 

spring  and  the  right  to  draw  water  from  it  to  its  full  extent 
of  supply.  He  afterwards  laid  drains  through  his  land  to 
drain  the  top  surface  of  the  soil  and  render  it  susceptible  of 
cultivation.  And  it  was  held  that  he  had  a  right  so  to  do, 
though,  possibly,  by  so  doing  he  might  divert  some  portion 
of  water  that  would  otherwise  have  percolated  through  the 
earth  to  the  spring,  and  increased  its  supply.  But  he  would 
have  no  right  to  do  this  on  purpose  to  prevent  the  water  from 
supplying  the  spring,  nor  would  he  have  a  right  to  construct 
his  drain  so  carelessly  or  negligently  as  to  draw  the  water 
off  from  the  spring  or  lessen  the  quantity  of  water  therein. 
The  owner,  in  granting  the  spring,  would  be  presumed  to  re- 
tain the  right  of  surface  drainage  for  agricultural  purposes, 
unless  plainly  negatived  by  the  terms  and  operation  of  the 
grant.^ 

But  where  there  were  springs  upon  the  upper  parcel, 
which  rose  upon  the  surface  into  ponds  or  pools,  with  a  con- 
stant supply,  and  found  their  way  into  the  lower  parcel,  but 
the  space  where  they  rose  upon  the  surface  was  so  near  the 
boundary  of  the  lower  parcel  that  the  water  could  not  form 
for  itself  a  defined  channel  or  channels,  it  was  held  that  the 
owner  of  the  upper  parcel  had  no  right  to  pump  up  and 
divert  the  waters  of  these  ponds  or  pools,  and  thereby  de- 
prive the  lower  parcel  of  the  use  and  benefit  thereof,  al- 
though no  defined  watercourse  or  channel  had  been  formed 
from  the  one  into  the  other.- 

9.  The  court,  in  Broadbent  v.  Ramsbotham,  refer  to  the 
case  of  Rawstron  v.  Taylor,  as  confirming  the  views  sus- 
tained by  them.  In  that  case,  plaintiff  owned  and  occupied 
mills  and  a  reservoir,  fed  by  streams  flowing  to  the  same, 
and  his  claim  for  damages  was  for  the  diversion  of  water 
which  had  formerly  gone  to  supply  these,  by  acts 
done  by  *the  defendant  upon  his  own  land.  The  [*361] 
facts  are  very  numerous  and  difficult  of  explanation 
without  a  plan.     But  the  opinion  of  the  court  will  be  suffi- 

1  Buffum  V.  Harris,  5  11.  I.  243. 

2  Ennor  v.  Barwell,  2  Giff.  410,  426. 


438  THE    LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

ciently  explicit  to  show  the  rule  of  law  in  cases  such  as  are 
above  supposed.  As  to  one  of  the  alleged  diversions,  the 
court  say  :  "  This  is  the  case  of  common  surface  water  rising 
out  of  springy  or  boggy  ground,  and  flowing  in  no  definite 
channel,  although  contributing  to  the  siipply  of  the  plain- 
tiff's mill.  This  water  having  no  defined  course,  its  supply 
being  merely  casual,  the  defendant  is  entitled  to  get  rid  of  it 
in  any  way  he  pleases."  So  as  to  the  other  case  of  diver- 
sion they  say  :  "  This  water  has  no  defined  course,  and  the 
supply  is  not  constant ;  therefore  the  plaintiff  is  not  entitled 
to  it,  and  the  defendant  is  entitled  to  get  rid  of  this  also,  for 
the  purpose  of  cultivating  his  land,  in  any  way  he  pleases." 

There  was  one  other  source  of  supply  which  the  defend- 
ant had  diverted,  which  consisted  of  an  artificial  channel, 
but  which  was  controlled  by  a  deed  between  the  parties, 
which  can  throw  no  light  upon  the  general  question  under 
consideration,  and  is  therefore  omitted,  except  to  say  that, 
not  being  a  natural  watercourse,  the  plaintiff  woiild  have 
no  right  of  action  against  the  defendant  for  diverting  the 
water  flowing  therein,  independent  of  the  grant  under  which 
the  plaintiff  claimed.  Piatt,  B.,  in  giving  his  opinion  upon 
the  first  two  cases  of  diversion,  says,  "  As  this  was  merely 
surface  water,  and  the  defendant  had  a  right  to  drain  his 
land,  and  the  plaintiff  could  not  insist  upon  the  defendant 
maintaining  his  fields  as  a  mere  water-table,"  the  defendant 
was  entitled  to  judgment.  And  Martin,  B.  adds  :  "  He  is 
at  liberty  to  get  rid  of  the  surface  water  in  any  manner  that 
may  appear  most  convenient  to  him ;  and  I  think  no  one  has 
a  right  to  interfere  with  him,  and  that  the  object  he  may 
have  had  in  so  doing  is  quite  immaterial."  It  may  be 
stated,  though  it  seems  not  to  have  been  made  a  point  in 
the  case,  that  the  plaintiff's  mill  was  an  ancient  one,  and 

had  enjoyed  the  benefit  of  the  water  from  the  swamps 
[*362]    and  *the  surface  of  the  defendant's  land,  which  was 

the  subject  of  the  suit,  from  an  ancient  period. ^ 

1  Broiidbent  v.  lliiinsbotlmin,  1 1  Exch.  3G9.  Sec  Stetson  v.  Ilowlaml,  2 
Allen,  591. 


Sect.  6.]  EIGHTS   IN   RAIN   AND   SURFACE   WATER.  439 

10.  The  rule  is  briefly  stated  in  Dickinson  v.  Canal  Co. : 
"  Where  the  springs  come  to  the  surface,  and  form  streams 
and  rivers,  the  established  rules  apply,  that  each  riparian 
owner  is  entitled,  not  to  the  property  in  the  flowing  water, 
but  the  usufruct  of  its  stream,  for  all  reasonable  purposes, 
to  drink,  to  water  his  cattle,  or  to  turn  his  mills,  according 
to  the  nature  and  situation  of  the  stream."  ^ 

11.  A  question  of  this  kind  arose  in  Luther  v.  Winnisim- 
met  Company,  where  the  rule  of  law  was  stated  to  be  as 
follows :  "  If  there  was  a  watercourse  or  stream  of  water 
running  through  the  land  conveyed,  the  right  to  the  con- 
tinued flow  thereof  would  pass  to  the  plaintiff  under  his 
deed  as  parcel  of  his  grant.  But  if  there  were  no  such 
watercourse  or  stream  of  water,  the  plaintiff  could  not  claim 
a  right  of  drainage  or  flow  of  water  from  off  his  land  on  to 
or  through  the  defendant's  land,  merely  because  the  plain- 
tiff's land  was  higher  than  the  defendant's,  and  sloped  to- 
wards it,  so  that  the  water  which  fell  in  rain  upon  it  would 
naturally  run  over  the  surface  in  that  direction."  The  court 
go  on  to  define  what  is  meant  by  a  watercourse,  the  stopping 
of  which  would  be  a  cause  of  action,  namely,  "  A  water- 
course is  a  stream  of  water  usually  flowing  in  a  definite 
channel,  having  a  bed  and  sides  or  banks,  and  usually  dis- 
charging itself  into  some  other  stream  or  body  of  water.  To 
constitute  a  watercourse,  the  size  of  the  stream  was  not  im- 
portant ;  it  might  be  very  small,  and  the  flow  of  the  water 
need  not  be  constant ;  but  it  must  be  something  more  than 
the  mere  surface  drainage  over  the  entire  face  of  a  tract  of 
land,  occasioned  by  unusual  freshets  or  other  extraordinary 
causes,"  and  it  is  a  question  for  a  jury  whether,  in  any  given 
case,  a  watercourse  exists  or  not.^ 

1  Dickinson  v.  Grand  Junction  Canal  Co.,  7  Exch.  301. 

2  Luther  v.  Winnisimmet  Co.,  9  Cush.  171;  Asliley  v.  Wolcott,  11  Cush. 
192 ;  as  to  what  is  a  channel,  see  Dudden  v.  Guardians  of  Poor,  &c.,  1  Hurlst.  & 
N.  627  ;  Rawstron  v.  Taylor,  1 1  Exch.  369  ;  Shields  v.  Arndt,  3  Green,  Ch.  234, 
246  ;  Goodale  v.  Turtle,  29  N.  Y.  466,  407  ;  Beard  v.  Murphy,  37  Verm.  104  ; 
Bangor  v.  Lansil,  51  Maine,  525;  Park  v.  Newburyport,  10  Gray,  28. 


440  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

[*363]  ^SECTION  VII. 

OF   RIGHTS   IN   SUBTERRANEAN   WATERS. 

1.  Subject  a  recent  one  in  courts. 

2.  No  action  lies  for  diverting  underground  springs. 

3.  Otherwise,  if  water  runs  in  a  defined  cliannel. 

4.  Rule  of  the  Civil  Law  in  such  cases. 

5.  Case  of  Acton  v.  Blundell.     Diverting  underground  Avaters. 

6.  No  one  may  damage  another  by  underground  water. 

7.  Case  of  Chasemore  v.  Richards.     Right  to  underground  water. 

8.  Distinction  between  underground  channels  being  known  or  not. 

9.  One  may  not  divert  a  stream  by  digging  wells  on  its  banks. 

10.  Law  as  to  waters  collecting  in  mines. 

11.  American  cases.     As  to  diverting  underground  supplies  of  water. 

12.  Case  of  Roath  v.  Driscol.     No  prior  right  by  prior  use  of  such  water. 

13.  Different  rule  as  to  prescriptive  right  gained  in  such  waters. 

14.  Ellis  V.  Duncan.     Case  of  diverting  sources  of  a  spring. 

15.  Wheatley  v.  Baugh.     Same  subject. 

16.  One  may  not  divert  such  sources  except  in  his  own  land. 

17.  Of  fouling  underground  sources  of  a  well. 

18.  How  far  one  maj'  prescribe  for  underground  waters. 

1.  "While  the  rights  and  liabilities  of  adjacent  land-owners 
in  respect  to  streams  of  water  flowing  upon  the  surface  have 
come  under  the  frequent  cognizance  of  courts  for  a  period  as 
long  almost  as  courts  have  been  known,  the  law  regulating 
the  use  and  enjoyment  of  springs  and  currents  of  water 
existing  underground  has  been  but  little  discussed  until  a 
comparatively  recent  day. 

We  are  authorized  by  Pollock,  C.  B.i  to  say,  that  the  dis- 
tinction was  made  for  the  first  time  between  underground 
waters  and  those  which  flow  on  the  surface,  in  the  case  of 
Acton  V.  Blundell,^  which  was  decided  as  recently  as  1843, 
though  it  is  believed  that  there  may  be  found  earlier 
[*364]  causes,  both  in  England  and  this  country,  where  *the 
doctrine  therein  maintained  was  enunciated  as  law. 
Since  the  decision  of  tliat  case,  the  question  has  come  up  in 
various  forms  in  both  countries,  and  the  same  general  course 

1  7  Exch.  300.  2  Acton  v.  Blundell,  12  Mecs.  &  W.  324. 


Sect.  7.]  EIGHTS  IN   SUBTERRANEAN  WATERS.  441 

of  ruling  in  respect  to  it  has  been  pursued  hy  the  several 
courts. 

2.  It  may  be  stated  as  a  general  principle  of  nearly  uni- 
versal application,  that,  while  one  proprietor  of  land  may 
not  stop  or  divert  the  waters  of  a  stream  flowing  in  a  surface 
channel  through  it,  so  as  to  deprive  a  land-owner  whose 
estate  lies  upon  the  stream  below  that  of  the  proprietor  first 
mentioned  of  the  use  of  the  same,  or  essentially  impair  or 
diminish  the  use  thereof;  if,  without  an  intention  to  injure 
an  adjacent  owner,  and  while  making  use  of  his  own  land  to 
any  suitable  and  lawful  purpose,  he  cuts  off,  diverts,  or 
destroys  the  use  of  an  underground  spring  or  current  of 
water  which  has  no  known  and  defined  course,  but  has  been 
accustomed  to  penetrate  and  flow  into  the  land  of  his  neigh- 
bor, he  is  not  thereby  liable  to  any  action  for  the  diversion 
or  stoppage  of  such  water. 

Thus  it  is  said,  "  no  land-owner  has  an  absolute  and 
unqualified  right  to  the  unaltered  natural  drainage  or  perco- 
lation to  or  from  his  neighbor's  land.  In  general,  it  would 
be  impossible  to  avoid  disturbing  the  natural  percolation  or 
drainage  without  a  practical  abandonment  of  all  improve- 
ment or  beneficial  enjoyment  of  his  land."  ^  "  We  are  of 
opinion  that  the  law  of  the  land  can  recognize  no  such 
claims  (claims  in  respect  to  subsurface  waters  without  any 
distinct  and  definite  channel),  and  that,  subject  only  to  the 
possible  exception  of  a  case  of  unmixed  malice,  ciijus  est 
solum  ejus  est  usque  ad  caelum  et  ad  inferos,  applies  to  its 
full  extent."  "  In  the  absence  of  express  contract,  and  of 
positive,  authorized  legislation  as  between  proprietors  of 
adjoining  lands,  the  law  recognizes  no  correlative  rights  in 
respect  to  underground  waters  percolating  or  filtrating 
through  the  earth,  and  this,  mainly,  from  considerations 
of  policy."  ^  In  the  case,  from  the  opinion  of  the  court  in 
which  these  extracts  are  made,  the  defendant  dug  ''  a  hole  " 

1  Bassett  v.  Company,  43  N.  H.  573. 

2  Frasier  v.  Brown,  12  Ohio,  St.  304,  311. 


442  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cn.  III. 

ill  his  land,  which  cut  off  and  stopped  the  sources  and  supply 
of  a  spring  which  had  previously  risen  in  and  supplied  the 
plaintiff's  land  with  water.  "  We  are  not  to  be  understood 
as  intimating  that  an  owner  may  maliciously  or  negligently 
divert,  even  an  unknown  subterranean  stream,  to  the  dam- 
age of  a  lower  proprietor.  But,  in  the  enjoyment  of  his 
land,  he  may  cut  drains  or  mine  a  quarry,  though,  in  so 
doing,  he  interfere  with  the  flowage  of  water  in  hidden, 
unknown,  underground  channels."  ^  In  this  case  the  de- 
fendant opened  a  mine  in  his  own  land,  300  feet  from  the 
plaintiff's  spring,  which  had  never  been  dug,  and  cut  off  the 
supply  of  water,  and  it  was  held  to  be  no  legal  wrong.  On 
the  other  hand,  no  one  can  claim  a  right  to  have  under- 
ground percolating  waters  drained  from  his  land  into  or 
through  that  of  another,  or  compel  the  owner  of  the  latter 
to  abstain  from  doing  that  on  his  land  which  will  pre- 
vent the  water  from  draining  from  the  parcel  first  meu- 
tioned.2 

But  he  may  not  foul  or  poison  the  water  which  percolates 
through  his  land,  so  as  to  come  to  that  of  another  in  a  state 
to  be  deleterious  to  the  health  of  man  or  beast.^ 

3.  This,  it  will  be  understood,  does  not  include  well- 
defined  streams  of  water  which  are  found  in  some  parts  of 
the  country,  which  in  their  course  sometimes  appear  upon 
the  surface,  and  then  become  subterranean  for  a  longer  or 
shorter  distance.  Nor,  for  the  present,  does  it  intend  to 
touch  upon  the  point  how  far  one  can  acquire  an  easement 
in  subterranean  waters. 

The  cases  in  which  the  question  has  been  considered  may 
be  stated,  generally,  to  have  been  those  of  springs  of  water 
flowing  naturally  from  the  earth  above  ground,  wells  where 
the  water  is  obtained  by  artificial  excavation,  and  waters 

1  Haldeman  v.  Bruckhanlt,  45  Penn.  521. 

2  Goodale  v.  Tuttle,  29  N.  Y.  466. 

3  Ilodgkinson  v.  Ennor,  4  B.  &  Smith,  229  ;  ante,  p.  *224 ;  12  Am.  L.  Reg.  240, 
by  Redficld. 


Sect.  7.]  RIGHTS  IN   SUBTERRANEAN   WATERS.  443 

accumulating  in  mines,  while  working  them,  by  percolation  • 
and  draining  through  the  adjacent  formation. 

4.  The  civil  law  upon  the  subject  is  thus  stated  in  the 
Digest  1 :  "  Denique  Marcellus  scribit  cum  eo  qui  in  suo 
fodiens,  vicini  fontem  avertit,  nihil  posse  agi,  nee  de 

dolo  *actionen.  Et  sane  non  debet  habere,  si  non  [*365] 
animo  vicino  nocendi,  sed  suum  agrum  meliorem 
faciendi  id  fecit."  The  English  of  which,  as  given  by  Maule, 
J.,  is,  "  If  a  man  digs  a  well  in  his  own  field,  and  thereby 
drains  his  neighbor's,  he  may  do  so  unless  he  does  it  mali- 
ciously."'-^ 

5.  This  doctrine  of  Marcellus  is  approved  by  Tindal,  C. 
J.,  in  Acton  v.  Blundell,  who  says,  in  regard  to  the  ques- 
tions in  that  case,  that  no  case  bearing  directly  was  cited  on 
either  side. 

The  case  was  this.  The  plaintiff,  Acton,  owned  a  mill 
which  was  operated  by  water  flowing  from  a  well  dug  in  his 
own  premises  by  a  former  owner  of  both  the  mill  and  the 
land  in  which  the  well  was  dug.  About  four  years  before 
commencing  the  present  action  the  plaintiff  had  enlarged 
the  well  for  the  purpose  of  supplying  more  water  for  his 
mill.  The  defendant  subsequently  opened  and  sunk  a  coal- 
mine in  his  own  land,  at  the  distance  of  three  quarters  of  a 
mile  from  the  plaintiff's  well,  the  effect  of  which  was  to  cut 
off  the  underground  veins  and  currents  of  water  which  sup- 
plied the  plaintiff's  well,  and  to  prevent  his  operating  his 
mill.  To  an  action  for  this  injury,  the  judge  at  Nisi  Prius 
held,  that  if  the  defendant,  in  properly  working  a  mine  in 
his  own  premises,  caused  a  diversion  of  the  water  from  the 

1  D.  39,  3,  1,  12. 

-  Acton  V.  Blundell,  12  Mees.  &  "W.  336 ;  "While  Bartlett,  J.,  in  Bassett  v. 
Company,  43  N.  H.  579,  expresses  a  doubt  as  to  our  decisions  having  tended  in  the 
direction  of  Acton  v.  Blundell,  the  English  court,  Crompton  J.,  in  New  River 
Co.  V.  Johnson,  2  E.  &  Ellis,  44.5,  says  it  is  a  decision  of  great  authority,  and 
that  the  case  of  Dickinson  v.  G.  Junction  Co.,  7  Exch.  282,  not  only  did  not  and 
could  not  overrule  it,  but  was  itself  virtually  overruled  by  the  judgment  of  the 
House  of  Lords  in  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  in  which  Acton  v. 
Blundell  is  approved  and  acted  upon. 


444  TIIK    LAW    OK   KASKMKNTS   AND    SKKVD  IIDKS.  [(Jir.  III. 

plaintilT's  well  :u\(\  mill,  Ik;  would  not  1)0  lialdi;  tlKM-ijCor.  A. 
j)()iiit  \v;is  iiiiulo  by  Uio  j)l;iiiili('("'s  (;ouiis(3l,  tliat,  if  tli(!  well 
had  enjoyed  the  water,  though  underground,  f(jr  twenty 
years,  the  defendant  would  have  no  right  to  divert  it.  liut 
in  the  present  case  the  well  had  been  dug  in  1821,  and  tho 
defendant  began  his  mine  in  1S'>7. 

The  court  held,  that  "  there  was  a  marked  and  suljstantial 
difference  "  betweiiii  the  law  as  to  the  I'ight  to  enjoy  an  un- 
derground sjiriiig  of  watei-  and  thai  by  which  a  watercourse 
flowing  on  the  surface  is  governed ;  "  they  are  not  governed 

by  the  same  rule  of  law." 
[*3GGJ  *Among  the  considerations  ii])on  wliicli  this  dif- 
ference is  based  is,  that  the  one  ])cing  notorious, 
whoever  buys  or  grants  it,  knows  what  passes,  while  the 
other  is  secret  and  unknown  at  the  time  of  purchase  and 
sale,  and  may  l)e  in  its  nature  constantly  shifting.  Nor  can 
it  ordinarily  bo  ascertained  what  part  of  the  supply  comes 
from  one's  own  land,  and  what  from  that  of  another.  Nor 
can  there  l)e  any  implied  mutual  consent  or  agreement  as  to 
what  shall  he  the  future  course  of  the  current  of  the  water 
from  its  liaving  ])reviously  llowed  in  a  known  channel. 

Another  suggestion  made  l)y  tlie  court  was,  that,  in  the  case 
of  running  surface  water,  the  land-owner  could  only  appro- 
priate the  use  of  the  water  while  flowing  ;  whereas,  if  by  ex- 
cavating a  well,  the  land-owner  can  apj)i'oj)riate  the  water 
whicli  supplies  it  underground,  it  would  he  creating  a  prop- 
erty in  the  water  itself,  and  would,  moreovei',  })revent  an  ad- 
jacent land-owner  from  enjoying  tho  water  that  is  in  his  own 
premises,  after  having  incurred  exjjenses  in  excavating  for  it 
within  his  own  land,  though  ignorant  of  any  injury  it  might 
occasion  U)  the  owner  of  the  ju'ior  well.  Ilesides,  the  benefit 
to  the  one  may  be  alt(^g(3ther  disj)roportioned  to  the  damage 
to  the  other,  if  the  rule  of  j)rior  occupancy  were  a})plied,  as 
in  the  one  case  a  well  might  bo  designed  lor  the  use  of  a 
cottage  only,  ov  a  tlrinking-])lace  for  cattle,  while,  in  order 
to  pi'eserve  it,  tiie  owner  of  an  extensive  and  valuable  mino 


Sect  7.]  RIGHTS   IN   SUBTERRANEAN   WATERS.  4-15 

might  be  prevented  from  working  it,  to  his  own  and  the 
public  injury.  And  lastly,  there  can  l)e  no  definite  limits 
within  which  the  restriction,  if  applied,  could  be  held  to 
operate.^  The  court,  moreover,  were  inclined  to  hold,  that 
the  right  to  interfere  with  underground  springs  as  supplies 
for  the  wells  upon  the  lands  of  adjacent  proprietors  was  in- 
cident to  the  general  right  of  property  which  every  man  has 
in  and  over  his  own  land,  whereby  whatever  is  in  a 
man's  *land  beneath  the  surface  is  his,  whether  rock  [*367] 
or  porous  earth,  whether  in  part  soil  and  part  water, 
or  wholly  soil,  which  he  may  dig  into  and  apply  to  such  uses 
as  he  pleases  ;  and  if  in  doing  so,  without  intent  to  injure 
his  neighbor,  he  cuts  off  or  drains  away  the  underground 
springs  which  had  supplied  his  well,  it  would  be,  as  to  him, 
damnum  absque  injuria. 

The  same  doctrine  applies  to  injuries  occasioned  by  depriv- 
ing the  owner  of  land  of  the  water  percolating  underground 
through  that  in  which  public  works  are  being  constructed, 
by  which  the  flow  is  stopped.  Such  land-owner  has  no  rem- 
edy by  action  for  the  loss.^ 

Wliat  rule  the  court  would  a})ply  had  the  well  been  an 
ancient  one,  in  the  sense  in  which  that  term  is  ordinarily 
used  in  respect  to  prescriptive  rights,  the  judge  raises  a 
query  which  is  not  answered  by  the  case.^ 

6.  The  court  in  the  above  case  refer  to  the  case  of  Cooper 
V.  Barber,  which  they  say  was  the  nearest  to  a  case  of  un- 
derground currents  of  water  which  had  till  that  time  been 
decided.  The  case  is  not  a  very  satisfactory  one,  but  is  re- 
ferred to  from  being  thus  alluded  to  by  the  court.  In  that 
case,  the  owner  of  one  parcel  of  land  diverted  water  from  a 
natural  stream  by  an  artificial  channel  for  the  purpose  of 

1  The  Artesian  well  at  the  Abattoir  dc  Grenelle,  in  Paris,  is  said  to  draw  a 
part  of  its  sujiply  from  a  distance  of  forty  miles  underground.  5  llurlst.  &  N. 
986. 

2  New  River  Co.  v.  John.son,  2  E.  &  Ellis,  446. 

8  Acton  V.  Bluudell,  12  Mees.  &  W.  324;  liadcliff's  Exrs.  v.  Mayor,  &c.,  4 
Comst.  195. 


446  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

irrigating  his  own  land.  The  water  from  this  artificial 
channel  percolated  through  the  plaintiff's  land  lying  near  it, 
which  was  of  a  light  porous  structure.  But  this  did  not 
show  itself,  nor  do  any  damage  to  the  latter  owner,  until, 
wishing  to  erect  a  dwelling-house  thereon,  he  dug  a  cellar, 
and  found  that  the  water  from  this  channel  of  the  defendant 
penetrated  into  it,  doing  damage  to  the  owner.  It  was 
sought  to  justify  the  right  thus  to  manage  the  water  by  the 
defendant,  because  he  had  enjoyed  the  same  for  a  space  of 
time  long  enough  to  give  him  a  prescriptive  right.  But  the 
court  held  that  the  owner  of  the  first-mentioned  parcel  and 
channel  could  not  acquire  a  prescriptive  right  as  against  the 
other  land-owner,  to  keep  up  the  water  on  his  own  land 
to  the  injury  of  the  other,  so  long  as  the  injurious  effect  to 

the  land  of  the  latter  could  not  be  known  to  him.^ 
[*368]  *The  court,  in  Humphries  v.  Brogden,^  allude  to  the 
case  of  Acton  v.  Blundell,  and  point  out  a  marked 
distinction  between  the  right  which  one  has  to  have  his  land 
supported  by  subjacent  or  adjacent  lands,  and  the  right  to 
running  water.  And  Maule,  J.  again  refers  to  it  with  ap- 
probation in  Smith  v.  Kenrick,^  and  Wightman,  J.,  with 
Lord  Chelmsford,  in  the  House  of  Lords,  more  fully  express 
their  approval  of  the  doctrines  of  that  case,  in  Chasemore 
V.  Richards. 

7.  The  case  of  Chasemore  v.  Richards  is  an  interesting 
one  from  the  importance  of  the  questions  decided,  and  from 
the  circumstance,  as  stated  by  Lord  Wensleydale,  that  the 
House  of  Lords  thereby  decided  for  the  first  time  the  ques- 
tion as  to  underground  water. 

The  case  was  first  heard  and  decided  in  1857,  in  the  Ex- 
chequer Chamber,*  and  afterwards,  upon  error,  in  the  House 
of  Lords,  in  ISSO,"^  and  in  both  in  favor  of  the  defendant, 

1  Cooper  V.  Biirher,  .3  Taunt.  99. 

2  Humphries  v.  Brogden,  12  Q.  B.  739,  753. 

3  Smith  V.  Kenriek,  7  C.  B.  515,  552. 

*  Chasemore  v.  Kicliards,  2  Ilurlst.  &  N.  168. 
6  Ibid.,  5  Ilurlst.  &  N.  982  ;  7  II.  of  L.  Cas.  349. 


Sect.  7.]  RIGHTS  IN   SUBTERRANEAN   WATERS.  447 

though  in  one,  Coleridge,  J.  was  inclined  in  favor  of  the 
I)laintiff,  and  in  tlie  other,  Lord  Wensleydale  hesitated  to  go 
as  far  as  the  Judges  and  House  of  Lords  in  sustaining  the 
doctrine  contended  for  in  behalf  of  the  defendant.  The 
facts,  as  stated  in  the  opinion  of  the  Judges,  were  substan- 
tially these.  The  plaintiff  had  an  ancient  mill,  operated  by 
the  waters  of  the  river  "Wandle.  This  he  had  enjoyed  for 
over  sixty  years.  The  river  was  supplied,  in  part,  by  the 
water  falling  upon  a  pretty  large  territory,  above  the  mill, 
including  the  town  of  C.  This  water  sank  into  the  earth, 
and  found  its  way,  percolating  at  different  depths  through 
the  earth,  to  the  river,  but  in  no  defined  course  or  current. 
Tlie  Board  of  Health  of  C.  sunk  a  well  in  their  land,  about  a 
quarter  of  a  mile  from  the  river,  for  procuring  water  for  their 
use,  and  pumped  it  up  therefrom,  in  great  quanti- 
ties, *for  a  supply  of  the  town,  and  diverted  so  much  [*369] 
of  the  underground  water  which  would  otherwise 
have  found  its  way  to  the  river  as  sensibly  to  affect  the  work- 
ing of  the  plaintiff's  mill.    The  action  was  for  this  diversion. 

In  respect  to  the  right  set  up  by  the  plaintiff,  the  judges 
say  :  "  It  is  impossible  to  reconcile  such  a  right  with  the 
natural  and  ordinary  rights  of  land-owners,  or  fix  any  rea- 
sonable limits  to  the  exercise  of  such  a  right Such  a 

right  as  that  claimed  by  the  plaintiff  is  so  indefinite  and 
unlimited,  that,  unsupported  as  it  is  by  any  weight  of  author- 
ity, we  do  not  think  that  it  can  be  well  founded,  or  that  the 
present  action  is  maintainable." 

Thus,  one  whose  well  is  drained  by  constructing  public 
works  near  it,  whereby  the  percolating  waters  which  supply 
it  are  cut  off,  can  have  no  action  for  the  injury.^ 

Lord  Chelmsford,  after  speaking  of  water  flowing  in  de- 
fined channels,  remarks :  "  But  these  principles,  applicable 
to  streams,  whether  above  or  under  ground,  did  not  seem  to 
be  applicable  to  water  merely  percolating  through  the  ground, 
which   had  no  certain  course  or  defined  limits   whatever. 

1  New  River  Co.  v.  Johnson,  2  E.  &  Elli<,  435. 


448       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

The  right  to  water  so  percolating  was  of  too  uncertain  a 
description.  When  did  it  commence  ?  If  the  owner  of  the 
land  could  not  intercept  it  in  its  course  through  his  land, 
could  he  catch  it  in  rain-water  tubs,  and  prevent  its  reaching 
the  ground  at  all  ?  " 

Lord  Cranwortli  remarked  :  "  The  argument  founded  on 
the  use  to  wliich  the  defendant  applied  this  water  did  not 
affect  his  mind  at  all,  because  he  thought  there  was  no  dif- 
ference in  the  case  whether  one  owner  sunk  a  well  to  supply 
a  thousand  other  owners,  or  each  of  these  sunk  a  well  to 
supply  himself." 

8.  It  is  not,  however,  the  circumstance  of  a  stream  being 
under  or  above  the  surface  which  determines  the  right  of 
the  land-owner  to  interfere  with  the  waters  wliich  are  found 
within  his  premises,  but  "  its  being  or  not  being  ascertained 
and  defined  as  a  stream."  If  there  is  a  natural  spring,  the 
water  from  which  flows  in  a  natural  channel,  it  cannot  be 
lawfully  diverted  by  any  one,  to  the  injury  of  the  riparian 
proprietors.  If  the  channel  or  course  underground 
[*370]  is  known,  *it  cannot  be  interfered  with.  It  is  other- 
wise wlien  nothing  is  known  as  to  the  sources  of 
supply.  In  that  case,  as  no  right  can  be  acquired  against 
the  owner  of  the  land  under  which  the  spring  exists,  he  may 
do  as  he  pleases  with  it,  and  if,  in  mining  or  draining  his 
land,  he  taps  a  spring,  he  cannot  be  made  responsible.^ 

So  in  Dickinson  v.  Grand  Junction  Canal  Co.,  the  same 
judge  says  :  "  If  the  course  of  a  subterranean  stream  were 
well  known,  as  is  the  case  with  many  which  sink  under- 
ground, pursue  for  a  short  space  a  subterranean  course,  and 
then  emerge  again,  it  never  could  be  contended  that  the 
owner  of  the  soil  under  which  the  stream  flowed  could  not 
maintain  an  action  for  the  diversion  of  it,  if  it  took  place 
under  such  circumstances  as  would  have  enabled  him  to 
recover,  if  tlic  stream  had  been  wholly  above  ground."^ 

1  Ter  Pollock,  C.  B.,  Dudden  v.  Guardians  of  Poor,  &c.,  I  Hiirlst.  &  N.  627, 
630  ;  Frasier  v.  Brown,  12  Ohio  St.  300. 

2  Dickinson  r.  Grand  Junction  Canal  Co.,  7  Exch.  301. 


Sect.  7.]  RIGHTS   IN   SUBTERRANEAN   WATERS.  449 

9.  On  the  other  hand,  if  there  be  a  diversion  of  the  waters 
of  a  stream  by  any  land-owner,  within  his  own  premises,  to 
the  injury  of  a  lower  proprietor,  it  matters  not  that  it  is 
done  by  digging  a  well  into  which  the  water  is  diverted, 
unless,  perhaps,  if  the  one  who  digs  the  well  is  ignorant, 
and  cannot,  by  any  reasonable  degree  of  care,  have  ascer- 
tained, beforehand,  that  the  digging  of  the  well  would  have 
the  effect  to  divert  the  water,  and  when  the  effect  is  dis- 
covered, is  unable  to  repair  the  mischief.^ 

In  addition  to  the  cases  above  cited  may  be  mentioned  that 
of  Hammond  v.  Hall,^  decided  in  1840,  which  relates  to 
subterranean  water  rights,  but  did  not  lead  to  any  important 
ruling,  and  is  oidy  referred  to  in  order  to  introduce  the 
remark  of  the  reporter,  as  a  reason  why  he  gives  the  case, 
that  "a  question  was  raised  in  arguing  it,  which  was 
said  never  to  have  been  discussed  before,  namely, 
*whether  a  right  or  easement  could  be  claimed  [*371] 
with  respect  to  subterranean  water." 

There  was  the  ancient  case  of  Prickman  v.  Tripp,^  for 
diverting  water  from  plaintiff's  well  by  digging  a  cistern 
near  it.  But  it  does  not  appear  what  was  the  nature  of  the 
supply  of  water  which  had  been  thus  diverted,  whether  by 
a  defined  stream  or  the  percolations  through  the  adjacent 
earth. 

10.  The  questions  as  to  the  rights  of  parties  in  respect  to 
underground  water,  in  its  effect  upon  the  working  of  mines, 
have  grown  out  of  causing  or  suffering  the  waters  which 
have  collected  by  percolation  intp  one  mine  to  flow  into 
another  to  the  injury  of  the  latter.  The  rule  in  such  cases 
seems  to  be,  that,  while  one  may  not  maliciously,  or  with- 
out reason,  cause  the  water  which  collects  by  percolation 
through  the  earth  in  his  own  mine  to  flow  into  that  of  an- 
other to  the  injury  of  the  latter,  if  he  does  this  in  the  usual 

1  Dickinson  v.  Grand  Junction  Canal  Co.,  7  Excii.  282,  301. 

2  Hammond  v.  Hall,  10  Sim.  551.     See  also  Broadbent  v.  Kamsbotiiam,  11 
Exch.  602,  615. 

3  rritkman  v.  Tripp,  Skinn.  389. 

29 


450  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

and  proper  mode  of  working  his  mine,  he  is  not  responsible 
therefor.  In  such  case,  neither  mine  owes  servitude  to  the 
other,  and  each  mine-owner  may  work  his  own  in  the  man- 
ner most  convenient  and  beneficial  to  himself,  although  the 
natural  consequence  may  be,  that  some  prejudice  will  accrue 
to  the  owner  of  the  adjoining  mine,  so  long  as  that  does  not 
arise  from  the  negligent  or  malicious  conduct  of  the  party. 
As  was  remarked  by  the  court  in  the  case  cited  below:  "  The 
water  is  a  sort  of  common  enemy,  against  which  each  man 
must  defend  himself.  And  this  is  in  accordance  with  the 
civil  law,  by  which  it  was  considered  that  land  on  a  lower 
level  owed  a  natural  servitude  to  land  on  a  higher,  in  re- 
spect of  receiving,  without  claim  to  compensation,  the  water 
naturally  flowing  down  to  it."  ^ 

11.  The  American  law,  it  is  believed,  conforms  to  the 

English  in  the  matter  of  underground  currents,  although 

it  is  appreliended  that  it  is  more  liberal  in  allowing 

[*372]    the  *  diversion  of  water  flowing  upon  the  surface  for 

the  purposes  of  irrigation,  than  would  comport  with 

the  doctrine  of  some  of  the  English  cases. 

Among  the  cases  where  the  question  of  diverting  under- 
ground streams  has  arisen,  is  Greenleaf  v.  Francis,  where 
the  plaintiff,  in  digging  his  cellar,  struck  upon  a  spring  of 
water  which  he  deepened  and  converted  into  a  well  within 
the  cellar,  and  had  used  it  for  the  purposes  of  his  family  for 
about  twelve  years,  when  the  defendant,  having  occasion  to 
dig  a  well  in  his  own  landj  near  the  plaintiff's,  struck  upon 
the  vein  of  water  which  supplied  the  well  of  the  latter,  and 
stopped  the  supply  therein.  Tlie  court  held  that  the  defend- 
ant did  no  more  than  he  had  a  right  to  do,  and  tlie  plaintiff 
was  without  remedy.  Considerable  stress  is  laid  by  the 
judge,  in  giving  the  opinion,  upon  the  fact  that  the  plaintiff 
liad  not  enjoyed  the  supply  of  water  for  his  well  for  twenty 
years,  though  it  is  not  in  terms  held  that  he  would  thereby 
have  acquired  any  better  rights  as  against  the  acts  of  the 

1  Smith  V.  Keiiiick,  7  C.  B.  515,  566  ;  D.  39,  3,  I,  22. 


Sect.  7.]  EIGHTS   IN   SURTERRANEAN   WATERS.  451 

defendant.  But  the  court  expressly  held  that  the  defendant 
would  not  in  cither  case  have  had  the  right  to  disturb  the 
plaintiff  in  the  enjoyment  of  the  supply  of  water  for  his  well, 
if  done  from  malice.^ 

Tiie  above  case  of  Grccnleaf  v.  Francis  was  decided  in 
1836,  seven  years  prior  to  Acton  v.  Blundcll.  In  1837  a 
question  somewhat  similar  arose  in  New  York,  before  the 
Chancellor,  upon  an  application  for  an  injunction,  which  is* 
stated  here,  in  order,  among  other  things,  to  give  the  chron- 
ological sequence  of  the  questions  as  they  arose.  In  the 
case  referred  to,  of  Smith  v.  Adams,  the  plaintiff  had  a 
spring  of  water  in  his  premises  within  a  few  feet  of  the  de- 
fendant's land.  He  had  conducted  water  from  this  spring 
by  an  aqueduct  to  other  parcels  of  his  land,  and  had  used 
the  water  thereof  in  this  way  for  more  than  twenty  years. 
The  defendant  then  dug  in  his  own  land,  and  struck 
the  *  vein  of  water  which  supplied  the  spring  near  [*373] 
the  line  of  his  land,  and  laid  an  aqueduct  therefrom 
to  his  house,  thereby  withdrawing  a  small  portion  which 
would  otherwise  have  flowed  into  the  stream. 

The  Chancellor,  in  denying  the  right  of  the  defendant 
thus  to  divert  the  water,  assumes  that  the  same  rule  applies 
as  if  the  stream  had  issued  upon  the  defendant's  land,  treat- 
ing it  of  course  as  if  it  had  become  a  defined  watercourse, 
though  underground.  Another  circumstance  in  the  case 
was,  that  the  defendant  dug  into  his  own  ground  with  the 
knowledge  and  intent  that  by  so  doing  he  could  and  would 
divert  the  water  which  would  otherwise  supply  the  spring  in 
the  plaintiff's  land.  And  because  the  water,  thus  diverted, 
"is  a  part  of  the  larger  stream  which  naturally  issued  from 
the  earth  upon  the  spring  lot  (the  plaintiff's)  below,"  the 
plaintiff,  in  the  opinion  of  the  Chancellor,  had  a  legal  right 
of  action  against  the  defendant  for  such  diversion,  although. 


1  Grreenleaf  v.  Francis,  18  Pick.  117.     See  also  N.  Albany  R.  R.  v.  Peterson, 
Ulnd.  112. 


452  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

for  reasons  stated  in  his  opinion,  he  did  not  see  fit  to  grant 
the  injunction  prayed  for.^ 

Tlie  next  case  in  the  order  of  time  was  Dexter  v.  Provi- 
dence Aqueduct  Co.,^  in  1840.  The  plaintiff  in  that  case 
was  the  owner  of  a  meadow  in  which  there  was  a  spring  of 
water  which  he  had  applied  to  purposes  of  irrigation  and 
watering  his  cattle  for  more  than  twenty  years.  The  de- 
fendants dug  a  large  well  near  the  plaintiff's  meadow,  for 
the  purpose  of  obtaining  water  with  which  to  supply  the 
city  of  Providence,  the  effect  of  which  was  to  divert  the 
water  from  the  spring,  and  to  render  it  dry.  Tlie  judge, 
chiefly  upon  the  strength  of  the  case  of  Balston  v.  Bensted,"^ 
which  will  be  hereafter  considered,  held  that  the  plaintiff 
was  entitled  to  an  injunction  restraining  the  defendants 
from  thus  diverting  the  water.  But  the  case  is  not 
[*374]  *elaborately  considered,  and  the  opinion  seems  to 
be  rather  in  the  light  of  an  interlocutory  judgment 
than  a  final  opinion  upon  the  matter  as  a  question  of  law. 

12.  The  case  of  Roath  v.  Driscoll,^  decided  in  1850,  is  a 
much  more  fully  and  ably  considered  case,  in  which  the 
court  discuss  the  general  doctrine  of  underground  waters  as 
the  subject  of  property.  In  that  case  the  plaintiff  sunk  a 
well  or  reservoir  in  his  land,  into  which  the  water  percolated 
and  stood  in  considerable  quantity,  but  did  not  rise  to  the 
surface.  The  defendant,  without  any  intent  to  injure  the 
plaintiff,  or  cut  off  the  supply  of  water  in  this  well,  dug  a 
like  well  or  reservoir  in  his  own  land,  near  the  plaintiff's, 
and  the  plaintiff  brought  his  bill  to  enjoin  the  continuance 
of  this,  on  the  ground  that  the  water  that  would  otherwise 
come  to  his  reservoir  was  diverted  to  his  injury.  The  plain- 
tiff had  applied  artificial  means,  by  way  of  a  siphon,  to  raise 
the  water  from  his  well  over  a  higher  level,  to  another  reser- 

1  Smith  V.  Adams,   6   Paige,  435.     See  Wlicatley   v.  Baugli,  2.5    Penn.  St. 
528. 
'■^  Dexter  v.  Prov.  Aqueduct  Co.,  1  Story,  387. 
3  Halston  V.  Benstud,  1  CaTiipi).  463. 
*  Koath  V.  Driscoll,  20  Conn.  533. 


Sect.  7.]  EIGHTS   IN   SUBTERRANEAN   WATERS.  453 

voir,  which  he  thereby  supplied,  which  was  also  stopped  after 
the  defendant  opened  his  well  or  reservoir.  But  this  arti- 
ficial use  of  the  water  had  not  been  continued  long  enough 
to  gain  thereby  any  prescriptive  rights. 

It  was  expressly  found,  that  wliatever  water  came  to  the 
well  of  either  party  percolated  through  the  earth,  and  not 
in  any  defined  channel  or  course.  The  court  waive  any 
question  that  might  have  been  made  to  any  prescriptive 
rights  under  a  different  state  of  things  ;  "  for  nothing,"  say 
they,  "  is  gained  by  a  mere  continued  preoccupancy  of 
water,  under  the  surface.  Why  should  any  advantage  be 
gained  by  preoccupancy  ?  Each  owner  has  an  equal  and 
complete  right  to  the  use  of  his  land,  and  to  the  water  which 
is  in  it.  Water  combined  with  the  earth,  or  passing  through 
it  by  percolation,  or  by  filtration,  or  chemical  attraction,  has 
no  distinctive  character  of  ownership  from  the  earth 
itself,  not  *more  than  the  metallic  oxides  of  which  [*375] 
the  earth  is  composed.  Water,  whether  moving  or 
motionless,  m  the  earthy  is  not,  in  the  eye  of  the  law,  distinct 

from  the   earth Priority  of    enjoyment  does  not  in 

like  cases  abridge  the  natural  rights  of  adjoining  proprietors. 
....  No  man  is  bound  to  know  that  his  neighbor's  well  is 
supplied  by  water  percolating  his  own  soil,  and  he  ought 
not,  therefore,  to  be  held  to  lose  his  rights  by  such  continued 
enjoyment.  He  cannot  know  that  the  first  well  requires  any 
other  than  the  natural  and  common  use  of  water  under  the 
surface,  nor  can  he  know  from  whence  the  water  comes,  nor 
by  what  means  it  appears  in  one  place  or  the  other,  nor 
which  of  the  persons  who  first  or  afterwards  opens  the  earth 
encroaches  upon  the  i*ight  of  the  other.  The  law  lias  not 
yet  extended  beyond  open  running  streams." 

The  court  of  Vermont  adopted  the  doctrine  of  Roath  v. 
Driscoll,  that  undergound  water  filtering  through  the  earth 
is  to  be  taken  as  a  part  of  the  soil,  and  the  owner  thereof 
may  take  measures  to  prevent  the  water  therein  from  perco- 
lating into  the  land  of  an  adjacent  owner  without  thereby 


454  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

violating  tlie  legal  rights  of  the  latter.  In  which  respect  the 
rights  of  adjacent  land-owners,  in  the  matter  of  underground 
waters,  do  not  correspond  with  those  whi6h  govern  the  en- 
joyment of  waters  flowing  upon  the  surface  in  defined  cur- 
rents. 

The  facts  in  the  case  to  which  these  doctrines  were  applied 
were  these.  One  land-owner,  in  order  to  avail  himself  of 
water  which  percolated  through  another's  land  into  his  own, 
sunk  a  hole  in  his  own  land,  and  inserted  a  cask  therein  to 
receive  the  water.  But  the  adjacent  owner,  in  order  to 
prevent  the  water  penetrating  to  the  land  of  the  first-named 
owner,  dug  into  his  own  land  and  placed  hard  earth  therein, 
which  stopped  the  percolation  of  the  water  into  the  other's 
land  ;  and  it  was  held  that  the  latter  was  without  remedy  for 

the  injury  thereby  occasioned.^ 
[*376]  *There  was  a  point  made  in  the  case  of  Chatfield 
V.  Wilson,  which  is  purposely  omitted,  here,  in  order 
to  consider  it  more  fully  hereafter,  and  that  is,  how  far  the 
owner  of  land  adjacent  to  that  in  which  there  is  an  existing 
well  or  spring  can  wantonly  and  maliciously  cut  off  the 
underground  supply  of  water  therefor,  which  is  derived 
through  or  from  his  land,  by  acts  done  upon  his  own  prem- 
ises. 

13.  Two  inferences  may  fairly  be  drawn  from  the  language 
of  the  court  in  the  case  of  Roath  v.  Driscoll,  although  not 
directly  stated.  First,  that  a  different  rule  from  that  ap- 
plicable to  water  percolating  through  the  earth  would  be 
adopted  in  respect  to  w^ater  flowing  in  a  known,  defined 
current,  though  underground.  And,  second,  that  no  mere 
length  of  enjoyment  of  such  percolating  water,  by  means  of 
artificial  wells  or  reservoirs,  gives  the  one  in  whose  land  they 
are  dug  any  prior  prescriptive  right  to  such  enjoyment  as 
against  the  proprietor  of  other  lands,  who,  in  digging  a  well 
or  "reservoir  for  liis  own  use,  cuts  off  or  diverts  the  supply  of 
the  wells  of  the  former  owner. 

1  Chatfield  v.  Wilson,  28  Vt.  49;  s.  c,  31  Vt.  358.  Sec  Harwood  v.  Benton, 
32  Vt.  724. 


Sect.  7.]  RIGHTS   IN   SUBTERRANEAN   WATERS.  455 

14.  In  1855,  anotlicr  case  was  decided  in  the  Supreme 
Court  of  New  York,^  where  it  was  attempted  to  enjoin  the 
defendant  from  opening  ditclies  in  his  own  land,  and  work- 
ing a  quarry  of  stone  thereon,  because  by  so  doing  he  inter- 
cepted the  waters  of  an  underground  source  of  a  spring  in 
the  plaintiff's  land  which  supplied  a  small  stream  of  water 
flowing  partly  through  the  lands  of  both  parties.  It  will  be 
perceived  that  this  presented  a  dilTerent  question  from  that 
in  the  last-cited  case,  inasmuch  as  the  spring  which  was 
affected  was  a  natural  one,  the  head  and  source  of  a  stream 
of  water  flowing  upon  the  surface  ;  and  the  purposes  of  the 
party  occasioning  the  loss  were  partly  for  the  cultivation  of 
his  farm,  and  partly  the  opening  and  working  a  quarry,  and 
had  no  reference  to  making  use  of  the  underground  water 
upon  his  own  premises.  The  court  refused  the  ap- 
plication, *remarking  :  "  It  seems  to  me  that  the  [*377] 
rule  that  a  man  has  the  right  to  the  free  and  abso- 
lute use  of  his  property,  so  long  as  he  does  not  directly 
invade  that  of  his  neighbor,  or  consequentially  injure  his  per- 
ceptible and  clearly  defined  rights,  is  applicable  to  the  inter- 
ruption of  the  sub-surface  supplies  of  a  stream  by  the  owner 
of  the  soil,  and  that  the  damage  resulting  from  it  is  not  the 
subject  of  legal  redress."  In  this,  as  in  most  of  the  later 
American  cases,  the  case  of  Acton  v.  Blundell,  before  cited, 
is  referred  to  with  approbation.  But  it  was  conceded  by 
the  counsel  on  both  sides,  that  the  American  courts  have 
considerably  modified  the  English  law  of  easements  gener- 
ally. 

The  doctrine  of  Acton  v.  Blundell,  above  cited,  as  to 
cutting  off  underground  streams  of  water  which  supply  the 
well  of  another,  is  recognized  and  reaffirmed  by  Bronson,  C. 
J.,  in  Radcliff 's  Exrs.  v.  Mayor,  (tc.^ 

15.  In  the  same  year  (1855)  the  case  of  Wheatley  v. 

1  Ellis  V.  Duncan,  21  Barb.  230. 

2  Radclilf's  Exrs.   v.  Mayor,  &c.,  4   Comst.  195,  200.     See  also  Bellows  v. 
Sackett,  15  Barb.  96. 


456  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

Baugli  ^  was  decided  in  a  full  and  elaborate  opinion  by  Lewis, 
C.  J.  The  facts  of  the  case  were  these.  The  plaintiff,  as 
lessee,  occupied  premises  having  upon  them  a  valuable 
spring  from  1824  to  1853,  the  water  of  which  was  important 
for  the  carrying  on  his  business  as  a  tanner.  In  1852 
defendant  began  to  work  a  valuable  copper-mine  on  his  own 
premises,  five  hundred  and  fifty  yards  from  the  spring.  And 
in  1853,  in  prosecuting  his  work,  he  cut  off  the  supply  of 
water  from  the  spring,  to  the  great  injury  of  the  plaintiff. 
The  court,  in  the  first  place,  recognizing  the  distinction 
between  mere  percolating  waters  and  those  flowing  in  a 
stream,  and  applying  the  same  rule  to  such  streams,  whether 
above  or  underneath  the  surface,  add  :  "  To  entitle  a  stream 
to  the  consideration  of  the  law,  it  is  certainly  necessary  that 

it  be  a  watercourse,  in  the  proper  sense  of  the  term. 
[*378]    ....    *A  subterranean   slreatn   which    supplies    a 

spring  with  water  cannot  be  diverted  by  the  pro- 
prietor above  for  the  mere  purpose  of  appropriating  the 
water  to  his  own  use When  the  filtrations  are  gath- 
ered into  sufficient  volume  to  have  an  appreciable  value,  and 
to  flow  in  a  clearly  defined  channel,  it  is  generally  possible 
to  see  it,  and  to  avoid  diverting  it  without  serious  detriment 
to  the  owner  of  the  land  through  which  it  flows.  But  per- 
colations spread  in  every  direction  through  the  earth,  and  it 
is  impossible  to  avoid  disturbing  them  without  relinquishing 
the  necessary  enjoyment  of  the  land.  Accordingly,  the  law 
has  never  gone  so  far  as  to  recognize  in  one  man  a  right  to 
convert  another's  farm  to  his  own  use  for  purposes  of  a 
filter Neither  the  civil  law  nor  the  common  law  per- 
mits a  man  to  be  deprived  of  a  spring  or  stream  of  water  for 

the  mere  gratification  of  malice The  owner  of  land 

on  which  a  spring  issues  from  the  earth  has  a  perfect  right 
to  it  against  all  the  world,  except  those  through  whose  land 
it  comes.     He  has  even  a  right  to  it,  against  them,  until  it 

2  Whoatloy  v.  Baufrh,  25  Pcnn.  St.  528.     Sec  Wlictstone  i\  Bowser,  29  Penn. 
St.  59.     Sec  llaldcman  v.  Bruckhardt,  45  rcnn.  518,  affirming  Wheatlcy  v.  Baugh. 


Sect.  7.]  RIGHTS   IN   SUBTERRANEAN   WATERS.  457 

comes  ill  conflict  with  the  enjoyment  of  tlicir  right  of  prop- 
erty. Strangers  cannot  destroy  it,  even  though  it  be  derived 
from  lands  which  do  not  belong  to  the  owner  of  the  spring." 
These  extended  quotations  state  so  fully  and  accurately 
what  is  believed  to  furnish  the  true  criterion  between  the 
rights  of  owners  of  adjoining  lands  in  respect  to  waters 
found  flowing  above  or  underneath  the  surface  of  their  re- 
spective estates,  that  it  is  unnecessary  to  add  to  the  state- 
ments therein  contained,  except  to  remark,  what  will  be 
repeated  hereafter,  that  the  court  held  in  that  case  that  the 
mere  length  of  time  for  which  the  owner  of  the  sj)ring  had 
enjoyed  it  had  no  effect  to  give  him  any  prescriptive  right  to 
the  use  of  it,  as  against  the  defendant.  And  judgment  in 
the  case  was  in  favor  of  the  defendant. 

16.  The  case  of  Parker  v.  Boston  and  Maine  Railroad,^  is 
in  affirmance  of  the  position  first  stated,  that  if  one 
in  *sinking  a  well  upon  his  own  premises  causes  the  [*379] 
water  to  flow  from  a  well  in  another's  land  into  his 
own,  it  is,  as  to  the  latter,  damnum  absque  injuria ;  and, 
second,  if  one,  without  being  such  owner,  does  acts  upon  the 
land  of  another,  which  he  was  not  authorized  by  the  owner 
to  do,  and  which  cause  the  diversion  or  loss  of  the  water 
which  supplies  the  well  upon  another's  land,  he  will  be  liable 
to  the  latter  in  damages.  The  case  was  one  where  a  railroad 
company,  in  constructing  their  road  across  the  land  of  A, 
adjoining  that  of  B,  by  their  excavation  cut  off  the  sources 
of  supply  of  B's  well,  which  had  been  derived  through  A's 
land,  and  were  held  responsible  for  the  damage  thereby 
occasioned.^ 

If  now  we  resume  the  inquiry  above  referred  to,'^  how  far 
one  may  maliciously  do  acts  within  his  own  land,  whereby 
he  cuts  off  the  underground  supply  of  water  which  the 
spring  or  well  of  his  neighbor  derives  from  or  through  the 
same,  we  must  recur  to  the  case  of  Chatfield  v.  Wilson.^ 

1  Parker  v.  Boston  &  Maine  R.  E.,  3  Cush.  107,  114. 

2  But  see  New  Albany  R.  R.  v.  Peterson,  14  Ind.  112. 

3  Ante,  pi.  1 2.  *  Chatfield  v.  Wilson,  28  Vt.  49. 


458  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.       |[Cii.  III. 

The  facts  in  this  case,  it  will  be  remembered,  were,  that 
the  defendant  placed  within  his  own  land,  and  near  the  line 
of  the  plaintiff's  land,  dry,  hard  earth,  which  prevented  his 
availing  himself  of  the  water  which  had  before  percolated 
into  the  plaintiff's  land,  and  supplied  an  artificial  reservoir 
placed  therein,  from  which  he  had  drawn  it  by  pipes  for  the 
use  of  his  buildings.  The  court,  in  giving  their  opinion,  say  : 
"  The  case,  so  far  as  it  is  sent  up  to  us,  only  concerns  the 
right  of  the  defendant  to  cut  off  the  filtration  of  the  water 
from  his  own  land  to  the  plaintiff's  tub  by  artificial  means, 
and  the  consequences,  if  ivantonly  done."  They  further 
say  :  "  The  act  of  the  defendant  in  the  obstruction  of  the 
water  being  in  itself  lawful,  could  not  subject  the  defendant 
to  damages,  unless  by  reason  thereof  some  right  of 
[*380]  the  plaintiff  has  been  violated.  The  *maxim,  sic 
Ktere  tuo  ut  alienum  non  IcpAcls,  applies  only  to  cases 
where  the  act  complained  of  violates  some  legal  right  of  the 
party ;  .  .  .  .  and  it  may  be  laid  down  as  a  position  not  to 
be  controverted,  that  an  act  legal  in  itself,  violating  no  right, 
caAnot  be  made  actionable  on  the  ground  of  the  motive 
which  induced  it."  And  they  refer,  by  way  of  analogy,  to 
the  case  of  a  man  building  upon  his  own  land  a  high  fence 
for  the  purpose  of  darkening  or  obscuring  the  light  from 
the  windows  of  a  neighboring  house,  which,  it  has  been  held, 
may  lawfully  be  done.  They  also  refer  to  a  remark  of  the 
court,  in  Greenleaf  v.  Francis,^  "  that  the  rights  of  the  de- 
fendant should  not  be  exercised  from  mere  malice,"  and 
add  :  "  We  think,  as  applied  to  a  case  like  the  one  then  at 
bar,  or  the  one  now  before  us,  the  position  was  unsound, 
and  against  principle  and  authority." 

The  case  had  come  up,  upon  the  ruling  of  Poland,  J.,  late 
Chief  Justice  of  that  court,  wherein  he  instructed  the  jury 
that,  "  If  they  found  that  the  acts  of  the  defendant  did  pre- 
vent the  usual  and  natural  flow  of  the  water  in  or  under  the 
ground  from  the  defendant's  soil  to  the  plaintiff's,  and  that 

1  Greenleaf  I'.  Francis,  18  Pick.  117. 


Sect  7.]  EIGHTS  IN   SUBTERRANEAN   WATERS.  459 

these  acts  were  done  by  the  defendant  solely  with  the  pur- 
pose of  injuring-  the  plaintiff,  and  depriving  him  of  water,  and 
not  with  any  purpose  of  usefulness  to  himself,  then  he  would 
be  liable  to  the  plaintiff  for  such  damages  as  he  thereby  sus- 
tained." 

In  determining  how  far  other  courts  have  adopted  the  one 
or  the  other  of  these  two  opposite  opinions  emanating  from 
such  respectable  sources,  it  will  be  necessary  to  refer  to  some 
of  the  cases  already  cited,  with  the  passing  remark,  as  to  the 
case  of  the  obstruction  of  windows  above  referred  to,  that  it 
has  been  held  to  be  the  only  way  in  which,  at  common  law,  a 
man  could  prevent  his  neighbor  from  acquiring  a  prescrip- 
tive right  to  enjoy  the  light  over  his  land  in  process  of 
time,  resulting  from  merely  having  been  suffered  to 
*enjoy  it,  whereas,  as  will  be  shown  hereafter,  [*381] 
courts  do  not  agree  that  one  can  acquire  a  pre- 
scriptive right  to  an  underground  supply  of  water  for  his 
spring  or  well  by  having  enjoyed  it  for  any  length  of  time. 

In  the  next  place,  the  courts  clearly  and  unequivocally 
recognize  the  right  to  have  a  well  or  spring  upon  one's  land 
supplied  by  underground  sources  as  so  far  an  existing  one, 
which  the  law  will  protect,  and  punish  the  invasion  of,  that 
if  a  stranger  who  has  no  right  in  the  same  go  upon  an  adja- 
cent lot  from  which  this  supply  is  derived  and  cut  it  off,  he 
will  be  liable  therefor  in  an  action  by  the  owner  of  such 
spring  or  well.^ 

It  would  therefore  seem  to  constitute  a  something  of  which 
meum  and  tuum  might  be  predicated,  and  in  regard  to  which 
the  maxim  sic  utere  tuo,  &c.,  would  not  be  wholly  foreign, 
especially  when  the  party  destroying  it  does  it  by  using  his 
property,  not  for  his  own  benefit,  but  solely  for  the  pur- 
pose of  depriving  his  neighbor  of  what  he  would  otherwise 
have  rightfully  enjoyed. 

So  far  as  authority  goes  upon  the  principal  point,  the 

1  Parker  v.  Boston  &  Maine  K.  E.,  3  Cusli.  107  ;  Wheatley  v.  Baugli,  25 
Penn.  St.  528,  533. 


460  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

court  of  Pennsylvania  cite  with  approbation  the  language  of 
the  court  of  Massachusetts,  in  Greenleaf  v.  Francis,  which, 
in  the  opinion  of  the  court  of  Vermont  above  cited,  is  said 
to  be  unsound  and  against  principle  and  authority,  and  add, 
in  connection  therewith :  "  Neither  the  civil  nor  the  common 
law  permits  a  man  to  be  deprived  of  a  well  or  spring  of  wa- 
ter for  the  mere  gratification  of  malice In  this  de- 
scription of  property  it  is  therefore  peculiarly  necessary  that 
each  should  be  mindful  of  the  necessities  and  rights  of  the 
others.  The  owner  of  land  on  which  a  spring  issues  from 
the  earth  has  a  perfect  right  to  it  against  all  the  world,  ex- 
cept those  through  whose  land  it  comes." 

In  Roath  v.  Driscoll,i  the  court,  in  giving  their 
[*382]  opinion  in  *a  like  case  of  diversion  of  underground 
water,  are  careful  to  say,  "  It  is  found  that  the  de- 
fendant is  acting  from  honest  motives  to  advance  his  inter- 
est, without  any  design  unnecessarily  to  injure  the  plain- 
tiff's"  ;  and  they  quote  from  Greenleaf  v.  Francis,  adopting 
the  language  as  their  own  :  "  In  the  absence  of  all  right  ac- 
quired by  grant  or  adverse  user  for  twenty  years,  the  owner 
of  land  may  dig  a  well  on  any  part  thereof,  notwithstanding 
he  thereby  diminishes  the  water  in  his  neighbor's  well,  un- 
less in  so  doing  he  is  actuated  by  a  mere  malicious  intent  to 
deprive  his  neighbor  of  water." 

The  court  of  Vermont,  in  a  subsequent  case  to  that  of 
Chatfield  v.  Wilson,  in  remarking  upon  that  case,  say : 
"  The  only  criticism  that  we  have  heard  upon  that  decision 
was  in  respect  to  excluding  the  wanton  and  improper  motive 
as  an  element  in  the  ground  of  the  defendant's  liability.  In 
the  present  case  there  is  no  imputation  of  such  motive."^ 

There  was  not,  it  is  true,  any"  occasion,  for  the  reason 
stated,  to  concur  or  otherwise  in  that  part  of  the  former 
ruling.  But  it  is  at  least  noticeable  that  the  court  pur- 
posely avoid  expressing  any  opinion  thereon,  while  they  do, 

1  IloiUli  V.  Driscoll,  20  Conn.  .'SSS. 

2  Ilarwood  v.  Benton,  32  Vt.  737. 


Sect.  7.]  EIGHTS  IN   SUBTERRANEAN  WATERS.  461 

upon  the  main  point,  refer  to  it  "  as  a  sound  exposition  and 
application  of  the  law." 

The  civil  law  expressly  places  the  exemption  from  liability 
to  an  action  of  one  who  by  digging  in  his  own  land  inter- 
rupts the  course  of  the  water  that  supplies  his  neighljor's 
fountain,  upon  the  intent  with  which  the  act  is  done :  "  Et 
sane  non  debet  habere  (sc.  do  dolo  actionem)  si  non  ani- 
mo  vicino  nocendi,  sed  suum  agrum  meliorem  faciendi,  id 
fecit."  1 

The  case  of  Panton  v.  Holland  was  one  for  injuring  the 
foundations  of  a  building  placed  by  the  plaintiff  upon  his 
own  land,  near  the  line  of  the  defendant's,  by  exca- 
vations *made  by  the  defendant  in  his  own  land.  [*383] 
Tlie  house  was  a  recent  one,  and  the  injury  was 
proved ;  but  the  court  held  the  defendant  was  not  liable,  un- 
less he  had  made  the  excavation  in  a  careless  manner.  But 
the  court  say  :  "  Suppose  Holland  (the  defendant)  had  de- 
clared that  he  would  exercise  his  right  of  digging  on  his 
own  ground,  contiguous  to  the  plaintiff's  wall,  not  to  benefit 
himself,  but  for  the  sole  purpose  of  injuring  the  plaintiff, 
and  digs,  accordingly,  below  the  plaintiff's  foundation,  but 
takes  care  that  there  be  no  ground  for  the  charge  of  negli- 
gence or  unskilfulness  in  the  exercise  of  his  right ;  consider- 
ing himself  safely  intrenched  within  the  protection  of  the 
law,  he  desists  from  further  operations,  his  object  is  accom- 
plished, the  adjoining  foundation  is  loosened,  and  the  build- 
ing is  materially  injured,  —  is  there  a  question  that  in  such 
a  case  the  party  injured  would  be  entitled  to  recover  dam- 
ages ?  The  gravamen  would,  in  the  case  put,  arise  from 
the  fact  that  the  act  was  maliciously  done."  ^ 

In  giving  an  opinion  in  the  House  of  Lords,  in  Chasemore 
V.  Richards,  Lord  Wensleydale,  referring  to  the  civil-law  doc- 
trine in  relation  to  cutting  off  the  underground  supply  of  a 

1  D.  39,  3,  1,  12.  See  2  J.  Voet.  ad  Pandect.  669  ;  1  Lacroix,  La  Clef  dcs 
Lois  Romains,  152,  tit.  Eau. 

2  Panton  v.  Holland,  17  Johns.  92,  98. 


462  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

well  above  referred  to,  says :  "  Every  man,  therefore,  had  a 
right  to  the  natural  advantages  of  l)is  land ;  but  those  ad- 
vantages were  to  be  obtained  subject  to  the  principle  sic  utere 
tuo,  &c.,  and  the  civil  law  and  the  law  of  Scotland  did  the 
same,  forbade  an  act  which  was  otherwise  lawful,  if  done 
animo  vicino  nocendi.^^  ^ 

17.  In  Brown  v.  lUius^  the  court  were  inclined  to  the  posi- 
tion, that  if,  in  the  prosecution  of  a  business,  like  the  manu- 
facture of  gas,  not  a  nuisance  per  se,  one  use  materials  upon 
his  land  which  penetrate  into  the  earth  and  corrupt  under- 
ground sources  of  supply  by  percolating  to  a  well  upon  a 

neighbor's  land,  he  would  not  be  liable  therefor.     It 
[*384]    does  *not  stand  upon  the  ground  of  corrupting  run- 
ning streams  of  water  flowing  to  another's  land.-^ 

18.  A  point  has  been  alluded  to  more  than  once,  in  con- 
sidering the  cases  upon  the  subject  of  rights  to  subterranean 
water,  and  which  never  seems  to  have  been  deliberately  set- 
tled either  in  England  or  this  country,  and  that  is,  how  far 
these  rights  are  within  the  rules  of  prescription,  or  are  sus- 
ceptible of  being  maintained  on  the  ground  of  exclusive 
enjoyment  for  a  length  of  time  sufficient  to  establish  such 
right  in  ordinary  cases  of  easements. 

Courts,  in  giving  opinions,  have  occasionally  referred  to 
the  case  of  Balston  v.  Bensted,*  as  settling  the  question, 
without  stopping  to  examine  the  soundness  of  the  opinion 
expressed  therein  at  Nisi  Prius.  The  case  was  of  a  spring 
which  the  plaintiff  had  enjoyed  within  his  own  land,  for 
more  than  twenty  years,  in  supplying  water  for  a  bath- 
house. The  defendant  having  occasion  to  work  a  quarry 
in  his  land  near  the  plaintiff's,  dug  a  drain  therefrom, 
wliich  was  necessary  to  rid  himself  of  the  water  accumulat- 
ing therein,  and  by  so  doing  drew  down  the  head  of  water 

1  Cliasemore  v.  Richards,  .5  Ilui-lst.  &  N.,  Am.  ed.  990. 

2  Brown  v.  Illius,  25  Conn.  .583. 

3  But  see  llodgkinson  v.  Ennor,  4  B.  &  Smith,  229  ;  12  Am.  L.  Reg.  240; 
Rcdficld's  note. 

*  Balston  v.  Benstcd,  1  Campb.  463. 


Sect.  7.]  RIGHTS    IN    SUBTERRANEAN    WATERS.  463 

in  the  plaintiff's  spring,  so  as  to  deprive  him  of  water  for  his 
bath-house.  Lord  Ellenboroiigh,  upon  the  trial,  remarked, 
"  That  there  could  be  no  doubt  but  that  twenty  years'  exclu- 
sive enjoyment  of  water  in  any  particular  manner  affords  a 
conclusive  presumption  of  right  in  the  party  so  enjoying  it." 
Story,  J.,  in  Dexter  v.  Providence  Aqueduct  Co.,i  refers  to 
this  case  with  approbation,  as  being  "  directly  in  point,  if 
indeed  the  same  principle  of  law  had  not  been  fully  I'ccog- 
nized  from  very  early  times "  ;  and  cites  Sury  v.  Pigot,^ 
where  the  illustration  drawn  by  the  court  from  the  law  as 
to  running-water  applies  to  the  case  of  streams  upon  the 
surface. 

The  case  from  Campbell,  if  law,  is  certainly  a  pe- 
culiar *one,  and  seems  to  come  more  nearly  within  [*385] 
the  case  of  Smith  v.  Adams  ^  than  the  ordinary  case 
of  water  supplying  a  spring  or  well  by  mere  percolation,  be- 
ing rather  of  the  nature  of  a  defined  though  undergroimd 
stream  of  water.  It  is  described  as  "  a  gush  of  water  from 
a  hole  in  the  plaintiff's  close,  which  used  to  run  from  thence 
on  the  surface  of  the  ground  into  the  river."  And  so  the 
Chancellor,  in  the  case  above  cited,  seems  to  have  regarded 
it  when  he  refers  to  it  in  giving  his  opinion. 

The  court  in  Massachusetts  discuss,  somewhat,  the  subject 
of  easements  acquired  by  adverse  possession,  as  connected 
with  the  enjoyment  of  underground  water  for  the  supply  of 
wells,  in  the  case  of  Greenleaf  v.  Francis,*  but  it  was  not 
called  for  by  the  case,  as  the  well  alleged  to  have  been 
injured  had  been  in  existence  only  twelve  or  fourteen  years. 

In  the  case  of  Chasemore  v.  Richards,'^  Creswell,  J.  com- 
ments upon  the  case  from  Campbell  above  cited,  remarking 
that  Lord  Ellenborough  seems  to  have  supposed  the  right  of 
a  riparian  owner  arises  out  of  some  presumption  of  grant  by 

1  Dexter  v.  Providence  Aqueduct  Co.,  1  Story,  387,  393. 

'^  Sury  V.  Pigot,  Poph.  166,  169. 

3  Smith  V.  Adams,  6  Paige,  435. 

*  Greenleaf  v.  Francis,  18  Pick.  117. 

5  Chasemore  v.  Kichards,  2  Hurlst.  &  N.  163,  183. 


464  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

those  liiglicr  up  the  stream.  "  It  is,  therefore,  probable  that, 
in  the  case  then  before  him,  which  related  to  the  water 
springing  up  in  the  plaintiff's  land,  he  meant  that  the  enjoy- 
ment of  it  for  twenty  years  raised  a  presumption  of  grant, — 
a  presumption  not  generally  made  against  those  who  had  no 
knowledge  of  the  existence  of  that  which  they  are  presumed 
to  have  granted."  He  states  that  no  one  in  the  case  under 
consideration  had  insisted  upon  the  doctrine  of  presumption 
being  applicable,  although  it  will  be  recollected  that  the 
mill-owners  who  complained  of  the  loss  of  water  in  that  case 
had  enjoyed  it  more  than  sixty  years.  He  states  also  that 
the  idea  of  a  presumed  grant  in  favor  of  riparian  proprietors 

of  the  enjoyment  of  running  water  was  repudiated 
[*386]  *in  the  case  of  Dickinson  v.  Grand  Junction  Canal 

Co.,^  since  it  is  ex  jure  naturce,  and  an  incident  of 
property,  and  adds  :  "  It  would  seem,  therefore,  that  the 
Court  of  Exchequer,  as  constituted  when  that  judgment  was 
given,  would  not  have  rested  an  opinion  in  favor  of  the 
plaintiff,  in  Balston  v.  Bensted,  on  the  ground  stated  by  Lord 
Ellenborough." 

The  court,  in  Roath  v.  Driscoll,^  state  the  question,  and 
intimate  their  opinion  upon  the  subject  in  the  following 
words  :  "  Have  tliey,  by  mere  prior  occupancy,  acquired  an 
advantage  over  the  defendant,  in  the  use  of  this  water  ?  Or, 
in  other  words,  can  one  of  two  adjoining  proprietors,  by  first 
opening  a  watering-place,  prevent  other  persons  from  doing 
the  same  on  their  own  lands,  though  by  so  doing  water  is 
prevented  from  percolating  the  land  so  as  to  supply  the  first- 
made  reservoir  ?  ....  As  to  adjoining  proprietors,  who 
open  the  earth  for  reservoirs  of  water,  this  distinction 
(whether  it  had  been  enjoyed  a  certain  number  of  years  or 
not)  is  not  the  rule,  for  nothing  is  gained  by  a  mere  contin- 
ued preoccupancy  of  water  under  the  surface.     Why  should 

1  Dickinson  v.  Grand  Junction  Canal  Co.,  7  Exch.  282.     See,  as  to  this  case, 
Crompton  J.,  in  New  lliver  Co.  v.  Jolmson,  2  E.  &  Ellis,  445. 
'■^  Roatii  V.  Di-iscoll,  20  Conn.  533. 


Sect.  7.]  RIGHTS  IN   SUBTERRANEAN   WATERS.  465 

any  advantage  be  gained  by  prcoccupancy  ?  Each  owner 
has  an  equal  and  complete  right  to  the  use  of  his  hind  and 
to  the  water  which  is  in  ity 

The  ruling  in  this  case  seems  to  settle  the  law  in  respect 
to  wells  or  artificial  reservoirs  which  are  fed  by  percolating 
waters,  and  the  case  already  cited,  of  Wheatley  v.  Baugh,^ 
with  equal  directness,  and  at  much  greater  length,  applies 
the  same  rule  to  cases  of  open  natural  springs  within  one's 
land  which  are  afifcctcd  by  excavations  made  for  proper 
purposes  in  the  lands  of  others.  "  The  prior  occupancy  of 
the  spring  for  the  uses  of  a  tannery  gave  no  right  of  servi- 
tude over  or  through  the  land  of  the  adjacent  proprietor. 
No  man,  by  mere  prior  enjoyment  of  the  advantages  of  his 
own  land,  can  establish  a  servitude  upon  the  land 
of  *  another."  Speaking  of  the  effect  of  the  enjoy-  [*387] 
ment  of  the  spring  for  the  period  of  twenty-one 
years :  "  This  depends  upon  the  question  whether  the  en- 
joyment of  the  spring  was  of  such  a  character  as  to  have 
invaded  his  neighbor's  rights,  so  as  to  enable  the  latter  to 

maintain  an  action  for  the  injury No  presumption 

can  arise  against  a  party,  on  the  ground  of  long  enjoyment 
of  a  privilege  by  another,  until  it  is  shown  that  the  privilege 
in  some  measure  interfered  with  the  rights  of  the  party 
whose  grant  is  proposed  to  be  presumed,  and  that  he  had  a 
legal  right  to  prevent  such  enjoyment  by  proceedings  at  law. 
Presumption  is  when  the  conduct  of  the  party  out  of  posses- 
sion cannot  be  accounted  for  without  presuming  a  convey- 
ance. Silence,  or  acquiescence,  where  one  is  not  injured, 
and  has  no  cause  of  complaint,  can  never  deprive  him  of  his 
rights,  on  the  ground  of  presumption  of  a  grant."  The  court 
fully  sustain  the  doctrine,  that,  if  a  spring  thus  situated,  de- 
pending upon  percolations  alone,  and  not  a  distinct  water- 
course leading  to  it,  was  diverted  by  the  owner  of  the  adjacent 
land  in  the  exercise  of  his  proper  business,  and  without  neg- 
ligence or  malice  on  his  part,  it  could  make  no  difference 

1  Wheatley  v.  Baugh,  25  Pena.  St.  528. 
30 


466  THE   LAW   OF    EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

that  the  owner  of  the  spring  had  enjoyed  the  same  for  any 
length  of  time  prior  to  such  disturbance.    And,  as  a  rule  as  to 
what  would  be  a  legal  presumption  in  such  case,  the  court  cite 
Hoy  V.  ^terrett,^  that  "  to  raise  the  presumption  of  a  grant, 
the  enjoyment  must  have  been  adverse  ;  there  must  be  a  con- 
tinued, exclusive  enjoyment  of  the  easement,  with  the  knowl- 
edge and  acquiescence  of  the  owner  of  the  inheritance,  for 
twenty-one  years  (that  being  the  period  of  limitation  in  Penn- 
sylvania), which  would  be  evidence  from  which  a  jury  might 
presume  a  right  by  grant  or  otherwise  to  such  easement." 
These  cases  seem  to  cover  the  whole  ground  upon  which 
a  prescriptive  right  to  underground  water,  not  flow- 
[*o88]  ing  in  a  *defined  stream,  could  be  placed,  and  to 
settle  that  such  a  right  cannot  be  maintained  ;  and 
the  later  English  cases  substantially  affirm  the  same  doctrine. 
Wightman,  J.,  in  giving  the  opinion  of  the  judges,  in  the 
House  of  Lords,  in  Chasemore  v.  Richards,^   speaking   of 
Balston   v.   Bensted,   says   the    opinion    therein   expressed 
"  amounted  only  to  the  dictum  of  an  eminent  judge,  followed 
by  no  decision  of  the  case,  ....  and  is  directly  at  vari- 
ance with  the  judgment  of  the  Court  of  Exchequer,  in  the 
case  of  Dickinson  v.  Grand  Junction  Canal  Co."     And,  in 
commenting  upon  the  question,  whether  the  use  of  the  water 
by  the  plaintiff  for  over  twenty  years  for  working  his  mill 
raises  any  presumption  of  a  grant,  says :  "  But  what  grant 
can  be  presumed,  in  the  case  of  percolating  waters,  depend- 
ing upon  the  quantity  of  rain  falling,  or  the  natural  moisture 
of  the  soil,  and,  in  the  absence  of  any  visible   means  of 
knowing  to  what  extent,  if  at  all,  the   enjoyment  of  the 
plaintiff's  mill  would  be  affected  by  any  water  percolating 
in  and  out  of  the  defendant's  or  other  land  ?     The  presump- 
tion of  a  grant  only  arises  where  the  person  against  whom  it 
is  to  be  raised  might  have  prevented  the  exercise  of  the 
subject  of  the  presumed  grant ;  but  how  could  he  prevent 

1  Hoy  V.  Stcrrett,  2  Watts,  .-JSO. 

2  Chasemore  v.  Richards,  .'j  Hurlst.  &  N.,  Am.  ed.  982. 


Sect.  7.]  RIGHTS   IN    SUBTERRANEAN    WATERS.  467 

or  stop  the  percolation  of  water  ?  .  .  .  .  The  right,  if  it  exists 
at  all  in  tlic  case  of  subterranean  percolating  water,  is  jure 
natures^  and  not  by  presumed  grant,  and  the  circumstances 
of  the  mill  being  ancient  would  in  that  case  make  no  differ- 
ence." Lord  Chelmsford  in  the  case  rebuts  the  doctrine  of 
Balston  v.  Bensted,  and  Lord  Wensleydale,  though  he  dif- 
fered from  the  opinion  of  the  judges  in  some  respects,  re- 
marked that  "he  did  not  think  that  the  princi})le  of  prescrip- 
tion could  be  applied  to  this  case.  The  true  foundation  of 
the  right  was,  that  it  was  an  incident  to  the  land  ex  jure 
naturcBr  Though  it  should  be  stated  that  Coleridge, 
J.,  in  Chasemore  v.  Richards,^  in  a  *dissenting  opin-  [*389] 
ion,  inclines  to  sustain  the  plaintiff's  right  to  water 
percolating  through  the  earth,  on  the  ground  of  long  and 
uninterrupted  enjoyment  by  means  of  a  mill,  which  was 
operated  by  the  means  of  a  river  into  which  such  water 
found  its  way  from  the  adjacent  land. 

So  Gould,  J.,  in  the  case  of  Ingraham  v.  Hutchinson,  in 
commenting  upon  the  case  of  Balston  v.  Bensted,  says : 
"  But  I  am  unable  to  perceive  why  the  plaintiff's  right  to 
recover  would  not  have  been  the  same  if  his  works  had  been 
erected  less  than  twenty  years,  or  had  not  been  erected  at 
all.  For  his  natural  right  to  the  use  of  the  spring  was  as 
absolute,  I  conceive,  as  if  the  water  had  flowed  in  a  rivulet 
upon  the  surface  through  the  defendant's  land  and  his  own, 
in  which  case  the  diversion  of  the  water  would  have  been 
an  infraction  of  his  natural  right,  though  the  diversion  had 
commenced  immediately  after  his  title  to  the  land  accrued."  ^ 

The  court  of  Ohio  hold,  that  the  doctrine  of  prescription  or 
presumption  of  grant  from  lapse  of  time,  can  have  no  proper 
application  to  the  law  of  percolating  waters,  the  using  of 
one's  own  property,  being  lawful  in  itself,  cannot  make  it  ad- 
verse to  the  lawful  right  of  another.^ 

"When,  in  addition  to  the  foregoing  authorities,  it  is  re- 

1  Chasemore  v.  Ilichards,  2  Hurlst.  &  N.  1 86. 

2  Ingraham  r.  Hutchinson,  2  Conn.  .584,  597. 

3  Frasierj;.  Brown,  12  Ohio,  311.     SeeHaldeman  v.  Bruckhardt,  45  Penn.  519. 


4G8  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cii.  III. 

membered  that  the  common-law  idea  of  prescription  implies 
a  grant  from  an  intelligent  grantor  of  something  with  which 
he  intends  to  part,  to  a  grantee  who  intends  to  accept  it,  and 
that  open  adverse  enjoyment  in  such  cases  is  nothing  more 
nor  less  than  evidence  of  such  a  grant,  it  is  difficult  to  see 
how  the  idea  of  such  a  grant  having  been  made  can  be 
raised,  when  neither  party  could  have  known  that  the  one 
was  deriving  anything  from  the  other,  and  where  the  first 
knowledge  that  the  supposed  grantor  had  of  any  water  being 
used  by  the  supposed  grantee,  which  had  been  derived  from 
the  land  of  the  former,  was  when,  in  the  exercise  of  his  own 
right  to  dig  within  his  own  premises,  he  struck  the  vein  that 
fed  and  supplied  the  well  of  his  neighbor.  Tlie  rule,  as  laid 
down  in  the  Code  Napoleon,  in  respect  to  acquiring  servi- 
tudes by  length  of  enjoyment,  is :  "  Servitudes  apparent  and 

continual  may  be  acquired  by  writing,  or  by  a  pos- 
[*390]   session  of  *thirty  years Continual  servitudes 

non-apparent,  and  continuable  servitudes,  apparent 
and  non-apparent,  cannot  be  created  but  by  writing."  ^ 


SECTION  VIII. 

OF   RIGHTS    TO   EAVES'    DRIP. 

1.  Nature  and  character  of  this  servitude. 

2.  How  fiir  it  may  exist  in  favor  of  the  land-owner. 

3.  How  far  it  is  an  easement  in  favor  of  a  building. 

4.  Not  hitherto  recognized  by  common  law  in  favor  of  land. 

5.  Enjoyment  of  eaves'  drip  does  not  authorize  use  of  gutters. 

6.  It  may  not  be  changed  to  increase  the  burden.  ' 

7.  Effect  on  this  servitude  if  the  building  is  destroyed. 

8.  Rule  of  the  Code  Napoleon  as  to  eaves'  drip. 

9.  Land-owner  may  not  interfere  with  the  right  by  building. 

10.  Efl'ect  of  acts  done  on  the  land  by  consent  of  owner  of  the  building. 
IL  How  the  right  of  eaves'  drip  should  be  exercised. 

1.    This  right,  which  the  owner  of  one  estate  may  acquire 

1  Art.  G'JO,  G91.     See  D.  8,  ."S,  21  ;  2  Fourncl,  Traite'  du  Voisinage,  411. 


Sect.  8.]  RIGHTS   TO   EAVES'    DRIP.  469 

in  and  upon  the  estate  of  an  adjacent  owner,  was  a  servi- 
tude known  to  the  civil  law  under  the  name  of  stillicidium  or 
Jlumen^  according  to  the  circumstances  under  which  it  was 
enjoyed.  It  is  also  a  well-known  servitude  or  easement  at 
common  law,  and,  under  the  name  of  droit  de  goiitticre,  or 
droit  dVg-Qut  des  toits,  is  treated  of  at  large  in  the  French 
law.  It  is  in  its  character  sufficiently  akin  to  the  servitudes 
of  water,  which  have  already  been  treated  of,  to  be  con- 
sidered in  this  connection.^ 

It  grows  out  of  the  fact,  that,  for  one  to  construct  the  roof 
of  his  house  in  such  a  manner  as  to  discharge  the  water  fall- 
ing thereon  in  rain,  upon  the  land  of  an  adjacent  proprietor, 
is  a  violation  of  the  right  of  such  proprietor,  if  done  without 
his  consent,  and  this  consent  must  be  evidenced  by  express 
grant  or  prescription. 

*The  mode  in  which  this  injury  may  be  occasioned  [*391] 
may  be  by  extending  the  roof  of  such  building  be- 
yond the  line  of  separation  between  the  two  estates,  or  by  so 
constructing  it  as  to  throw  the  water  falling  thereon,  by  its 
own  impulse  and  direction,  across  this  line,  and  thereby 
causing  it  to  be  discharged  upon  the  estate  of  the  adjacent 
land-owner.  For  an  injury  of  this  kind,  occasioned  in  either 
way,  the  owner  of  the  land  may  have  an  action  against  the 
owner  of  the  house.  But  where  it  is  caused  by  projecting 
the  roof  beyond  the  imaginary  line  that  separates  the  two 
estates,  it  is  moreover  violating  the  familiar  principle  of  law 
by  which  cujus  est  solum  ejus  est  usque  ad  ccelum,  since  it  mat- 
ters not,  so  far  as  a  right  of  action  is  concerned,  whether  one 
breaks. another's  close  by  crossing  this  imaginary  line  that 
bounds  it,  upon,  beneath,  or  above  the  surface,  provided  it  be 
done  against  his  consent.^ 

1  Toullier,  Droit  Civil,  397  ;  2  Fournel,  Traite  du  Voisinage,  113  ;  1  Le  Page 
Desgodets,  208,  209,  445. 

2  2  Rolle,  Abr.  140,  citing  18  Edw.  III.  22  b;  Baten's  case,  9  Rep.  .53  ;  Tucker 
V.  Newman,  11  Adolph.  &  E.  40  ;  Fay  v.  Prentice,  1  C.  B.  828,  838  ;  Thomas  v. 
Thomas,  2  Crompt.  M.  &  R.  34  ;  Bellows  v.  Sackett,  15  Barb.  90  ;  D.  8,  2,  1  ; 
2  Fournel,  Traite'  du  Voisinage,  113,  114. 


470  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cn.  111. 

In  considering  a  case  arising  from  the  flow  of  water  from 
the  eaves  of  a  house  upon  adjoining  land,  the  court  said  it 
presented  three  questions  :  1.  Whether  the  grant  of  the 
land  extended  to  the  body  of  the  house.  If  it  did,  and  the 
owner  of  the  house  had  openly  claimed  a  right  to  have  his 
eaves  hang  over  and -the  drip  fall  on  to  the  adjacent  land  for 
the  requisite  time,  it  would  be  an  acquisition  of  the  land. 
2.  If  the  grant  made  the  house  a  monument,  the  line  of  the 
eaves  would  be  the  line  of  the  land.  3.  If,  without  claiming 
the  land,  the  eaves'  drip  had  been  enjoyed  for  the  requisite 
time,  it  would  gain  an  easement  in  the  land  to  that  extent, 
unless  done  by  permission  of  the  land-owner. ^ 

2.  But  though  one  may  by  prescription  or  grant  acquire  a 
right  to  project  the  roof  of  his  house  beyond  the  line  that 
bounds  his  land,  it  is  only  of  the  servitude  stillicidii  vel 
fiuminis  recipiendi  that  it  is  now  proposed  to  treat.  It  may 
be  remarked,  however,  that  there  was  a  servitude  the  reverse 
of  what  is  above  expressed  which  might  be  acquired  by  the 
civil  law,  by  which  one  was  not  at  liberty  to  turn  the  water 
flowing  from  the  eaves  of  his  house  upon  his  own  land,  when 
the  same  had  been  enjoyed  by  another  for  the  benefit  of  his 
land  for  the  requisite  period  to  establish  a  prescription.^ 

3.  Tiie  right  of  the  owner- of  a  building  thus  to  discharge 
the  rain  falling  upon  its  roof  upon  the  land  of  another,  it 
may  be  repeated,  was  a  servitude  by  the  civil  law  and  an 

easement  at  the  common  law.  It  was  stUlicidium, 
[*392]   *if  the  water  fell  in  drops  from  the  eaves,  but  took 

the  name  o^  Jiumen,  if  conducted  in  a  stream  by  a 
spout  or  gutter.'^ 

4.  But  the  servitude  stillicidii  vel  fiuminis  non  avertendi, 
above  mentioned,  that  is,  the  right  in  the  land-owner  to 

1  Carhrcy  v.  Willis,  7  Allen,  370. 

-  2  Toullier,  Droit  Civil,  396,  397  ;  2  Fournel,  Traite  du  Voisinage,  114;  D. 
8,  2,  2. 

8  1  KaiiflT.  IMakelduy,  §  312;  Vinnius,  Lib.  2,  tit.  3,  M  ;  Domat,  Lib.  I, 
tit.  12,  ^  2,  Art.  2  ;  2  Fournel,  Traite  du  Voisinage,  114,  and  note;  Cherry  v. 
Stein,  11  Md.  1,  25;  Vincent  v.  MielicU,  7  La.  52;  Alexander  r.  Boghel, 
4  La.  312. 


Sect.  8.]  EIGHTS   TO   EAVES'    DRIP.  471 

insist  upon  having  the  water  from  another's  caves  discharged 
upon  his  land,  does  not  seem  to  be  one  that  has  liitherto 
been  recognized  by  the  common  law.  So  that,  if  the  owner 
of  such  building  were  to  remove  the  same  or  change  its  roof, 
and  thereby  stop  such  discharge,  the  land-owner  would  be 
without  remedy  for  any  loss  thereby  sustained.^ 

6.  If  one  acquire  the  right  to  have  the  water  from  his 
roof  discharged  upon  another's  land  in  drops  from  the  eaves 
thereof,  it  does  not  give  him  a  right  to  collect  it  in  a  spout 
or  gutter,  and  have  it  discharged  in  a  united  stream.^ 

6.  If  one  acquires  for  his  house  the  easement  of  eaves' 
drip  upon  another's  land,  he  cannot  do  anything  to  increase 
the  injurious  effect  thereby  occasioned  to  such  land,  nor  add 
to  the  quantity  by  receiving  water  from  other  roofs  upon  his 
own ;  but  he  may  change  the  form  in  which  it  is  enjoyed, 
provided  he  does  not  increase  such  effect.  It  has  accordingly 
been  held  that  he  might  raise  his  house  higher,  but  could 
not  reduce  its  height,  because  in  the  one  case  the  drops  from 
the  eaves  would  be  less,  and  in  the  other  more  injurious  in 
their  fall.  If  the  owner  of  the  house  become  the  owner  of 
the  land,  the  servitude  as  such  would  be  extinguished  so  long 
as  the  two  were  united  in  one  ownership.  But  upon  con- 
veying the  house  again  the  servitude  would  revive.^ 

*7.  If  the  house  to  which  this  servitude  belongs  be  [*39o] 
destroyed,  the  owner  does  not  lose  the  easement  if 
he  rebuilds  the  house  in  the  same  form  and  size  of  the  for- 
mer one.  He  may  not  alter  its  proportions  or  parts  so  as  to 
render  the  servitude  more  burdensome  than  it  had  pre- 
viously been.* 

And  so  strict  was  the  civil  law  in  this  respect,  that  it  did 
not  admit  of  covering  the  roof  from  which  the  water  flowed 

1  Arkwright  v.  Gell,  5  Mees.  &  W.  203,  233 ;  Wood  v.  Waud,  3  Exch.  748, 
778. 

2  Keynolds  v.  Clark,  2  Ld.  Raym.  1399. 

3  Thomas  v.  Thomas,  2  Crompt.  M.  &  E.  34,  40 ;  2  TouUier,  Droit  Civil, 
398 ;  2  Fuurncl,  Tiaite  du  Voisinage,  115  ;  post,  chap.  5,  sect.  2,  pi.  1. 

*  D.  8,  2,  20,  2  ;  2  Fourncl,  Traite  du  Voisinage,  115. 


472  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cii.  III. 

with  a  material  from  which  it  fell  with  more  force  than  from 
that  which  had  constituted  the  former  covering  of  the  roof.^ 

8.  The  Code  Napoleon  simply  declares  that  "  Every  own- 
er ought  so  to  fix  his  eaves  that  the  rain-water  shall  run  on 
to  his  own  soil  or  upon  the  public  way  ;  he  cannot  turn  it 
upon  the  land  of  his  neighbor."  ^ 

It  is  accordingly  laid  down  in  the  French  law,  that  if  one 
build  a  house  near  the  premises  of  another,  he  ouglit  to 
leave  space  enough  next  the  wall  of  his  house,  upon  his  own 
land,  to  receive  the  water  from  its  roof  as  well  as  from  its 
court  and  kitchen.  And  rules  are  given  in  some  cities  fix- 
ing what  this  space  shall  be  in  certain  cases.  And  a  differ- 
ent rule  applies  where  the  water  falls  directly  from  the 
eaves  from  what  it  is  if  it  is  conducted  off  in  a  gutter  or 
spout.'^ 

9.  Where  one  has  acqviired  an  easement  of  eaves'  drip 
upon  another's  land,  the  latter  cannot  deprive  him  of  it  by 
erecting  upon  the  spot  on  which  the  water  falls,  any  build- 
ing of  different  height  to  prevent  the  discharge  of  the  water 

from  the  gutters  or  eaves  of  the  dominant  building.'* 
[*394]  *10.  But  if  one,  having  such  an  easement,  give  per- 
mission to  the  owner  of  the  land  on  which  the  water 
from  his  roof  falls  to  build  thereon  so  as  to  obstruct  the  dis- 
charge of  the  water,  the  easement  is  thereby  lost.  It  is  like 
the  common  case  of  the  effect  given  to  a  license  by  the  own- 
er of  the  dominant  estate  to  the  owner  of  the  servient,  to  do 
something  upon  the  latter  estate  which  deprives  the  former 
of  his  easement.     It  operates  to  extinguish  the  easement.^ 

1  D.  8,  2,  20,  4 ,  3  TouUier,  supra,  398. 

2  Code  Napoleon,  Art.  681. 

8  Pardessus,  Traite  des  Servitudes,  322. 

M.  Pardessus  examines  at  some  length  the  question  of  legal  presumption  of 
possession  and  ownersliip  of  the  strip  of  land  adjoining  one's  house  upon  which 
the  water  falls  from  its  eaves,  where  the  owner  of  the  adjoining  land  cultivates 
it  up  to  the  wall  of  the  house  for  a  long  period  of  years.  Ibid.  323.  See  also 
2  Fournel,  Traite  du  Voisinnge,  422  ;  "  Tour  de  rechelle,"  &c. 

*  D.  8,  2,  20,  3  &  6  ;  3  TouUier,  Droit  Civil,  398  ;  2  Fournel,  supra,  115. 

''  D.  8,  6,  8;  2  Fournel,  Traite'  du  Voisinage,  117;  3  TouUier,  Droit  Civil, 
399  ;  post,  chap.  5,  sect.  7,  pi.  4. 


Sect.  8.]  EIGHTS   TO   EAVES'   DPJP.  473 

11.  The  obligation  of  the  owner  of  a  house,  which  has  by- 
prescription  or  otherwise  the  right  of  eaves'  drip,  so  to  man- 
age the  same  as  not  to  increase  the  injury  thereby  occa- 
sioned to  the  adjacent  owner,  was  considered  in  the  case  of 
Bellows  V.  Sackett,  already  cited. ^  Tlio  defendant's  house 
had  stood  twenty-five  years,  the  plaintiff's  about  fifteen,  and 
was  witliin  two  feet  of  the  defendant's  eaves.  The  water 
from  the  defendant's  house  had  been  conducted  by  a  gutter 
to  the  ground  upon  his  own  premises,  but  he  suffered  this 
to  become  decayed,  and  the  water  from  that  side  of  the  roof 
all  fell  between  the  houses  upon  one  spot  about  midway  be- 
tween one  end  of  the  house  and  the  other,  and  by  percola- 
tion found  its  wa}'^  into  the  plaintiff's  cellar.  The  court,  in 
an  opinion  of  no  little  ambiguity,  growing  out  of  the  fact 
that  the  water  fell  upon  the  defendant's  own  land,  say : 
"  Here  the  defendant  had  the  clear  right  to  erect  his  bouse, 
to  cover  it  with  a  roof  which  would  prevent  the  rains  falling 
upon  the  surface  it  covered,  and  to  turn  the  water  falling 
upon  such  roof  upon  any  portion  of  his  own  soil,  at  any 
point,  and  in  any  quantity  he  might  choose.  But  for  such 
interruption  or  diversion  to  the  manifest  injury  of  another, 
he  is  clearly  responsible.  Here,  owing  to  a  want  of  suitable 
repairs,  the  water  falling  upon  an  area  of  twenty-five  feet  by 
thirteen  is  collected  at  a  single  point,  and  precipi- 
tated *in  an  unnatural  and  unusual  quantity  and  [*395] 
manner  so  near  the  plaintiff's  premises  as  necessa- 
rily to  cause  him  an  injury."  The  judgment  which  was  for 
the  plaintiff  in  this  case,  must,  it  would  seem,  rest  upon  the 
last  two  or  three  lines  of  the  above  extract  from  the  opinion 
of  the  court. 

1  Bellows  V.  Sackett,  15  Barb.  96,  102. 


474  THE  LAW   OF  EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

SECTION   IX. 

OF   EIGHTS   OF   PASSAGE   IN   PUBLIC    STREAMS. 

1.  The  public  have  a  right  of  way  in  public  streams. 

2.  Of  navigable  streams  at  common  law. 

3.  Other  than  navigable  streams  may  be  public. 

4.  Artificial  streams,  though  navig.able,  not  public. 

5.  Of  the  test  of  what  streams  are  public. 

6.  7,  8.  Rule  in  the  United  States  as  to  what  are  public  streams. 
9.  Property  in  public  streams,  and  use  of  their  banks. 

10,  11.  What  streams  public  in  the  several  States. 

12.  Of  property  in  the  banks  and  beds  of  streams. 

13.  How  far  the  public  may  use  the  banks  of  a  stream. 

14.  15.  How  far  one  may  occupy  the  stream  and  landings  in  using  it. 

16.  Right  to  use  banks  of  stream  limited  by  what  is  necessary. 

17.  Of  the  doctrine  of  dedication  to  public  use. 

18.  The  public  have  uo  right  to  use  the  banks  of  a  navigable  river. 

19.  Pearsall  v.  Post.     Case  of  claim  to  occupy  such  bank. 

20.  When  the  public  may  use  a  private  channel  for  passage. 

21.  Limit  of  one's  power  to  dam  a  public  stream. 

1.  This  work  would  evidently  be  incomplete  without  no- 
ticing, at  least  briefly,  two  other  subjects  growing  out  of  the 
existence  of  watercourses,  considered  in  their  broader  and 
more  comprehensive  sense  of  streams,  both  navigable  and 
not  navigable  ;  and  these  are  the  easement  of  way  which  the 
public  has  in  them,  and  the  rights  of  fishing,  connected  with 
an  interest  more  or  less  extensive  in  the  banks  and  waters 
of  such  streams. 

It  may  be  stated,  in  general  terms,  that  the  public  have  a 
right  of  passage  or  way,  like  a  public  highway,  by 
[*396]  ships,  *  boats,  or  other  craft,  upon  and  along  the 
course  of  all  public  rivers  or  streams.'^ 

1  Hale,  De  Jure  Maris,  Hargr.  Law  Tracts,  8,  9 ;  Woolr.  Waters,  33;  13  Co. 
33 ;  Bullock  v.  Wilson,  2  Port.  436 ;  Morgan  v.  Reading,  3  Smedes  &  M.  366, 
407  ;  People  v.  St.  Louis,  5  Gilm.  351  ;  O'Fallon  v.  Daggett,  4  Mo.  343  ; 
Hooker  v.  Cummings,  20  Johns.  90 ;  Baker  v.  Lewis,  33  Penn.  St.  301  ;  Brown 
V.  Chadbournc,  31  Me.  9;  Commonwealth  v.  Chapin,  5  Pick.  199;  Arnold  v. 
Mundy,  1  Ilalst.  1  ;  Cox  v.  State,  3  Blackf.  193;  Gavit  v.  Cliambers,  3  Ohio, 
495  ;  La  Plaisancc  Bay  Harbor  Co.  v.  Monroe,  Walk.  Ch.  155;  Bailey  t?.  Phila. 


Sect.  9.]         RIGHTS   OF   PASSAGE   IN   PUBLIC   STREAMS.  475 

But  every  stream  is  not  a  public  one,  nor  does  the  com- 
mon law  agree  in  this  respect  with  the  law  of  many  of  the 
States,  nor  are  the  rules  adopted  in  regard  to  it  by  some  of 
the  States  the  uniform  law  of  all. 

2.  As  a  general  proposition,  all  streams,  whether  of  fresh 
or  salt  water,  arc  prima  facie  public  so  far,  if  at  all,  as 
the  tide  ebbs  and  flows  in  the  same,  and  are  classed  under 
the  generic  term  of  "  navigable  streams,"  and  are  public 
highways.^ 

This  doctrine  is  uniformly  applied,  by  the  English  courts, 
as  laid  down  by  Lord  Hale,  and  especially  in  respect  to 
islands  formed  in  the  stream.  In  the  one  case  they  belong 
to  the  crown,  in  the  other  to  the  riparian  ov/ner  or  owners, 
as  the  case  may  be.^ 

And  yet  every  stream  is  not  navigable  because  the  tide 
ebbs  and  flows  in  it.  "  Nor  is  it  every  small  creek  in  which 
a  fishing-skiff  or  gunning-canoe  can  be  made  to  float  at  high- 
water,  which  is  deemed  navigable.  But,  in  order  to  have 
this  character,  it  must  be  navigable  to  some  purpose  useful 
to  trade  or  agriculture.  It  is  not  a  mere  possibility  of  being 
used  under  some  circumstances,  as  at  extraordinary  high 
tides,  which  will  give  it  the  character  of  a  navigable  stream, 
but  it  must  be  generally  and  commonly  useful  to  some  pur- 
pose of  trade  or  agriculture."^ 

3.  But  public  rivers  are  not  necessarily  navigable,  in  the 
sense   that   the  tide   ebbs  and   flows   therein.      They  may 

B.  &  W.  R.  R.  Co.,  4  Ilarringt.  389 ;  Blundell  v.  Catterall,  5  Barnew.  &  Aid. 
268  ;  Schurmeier  v.  St.  P.  &  Pac.  R.  R.,  10  Min.  103.  Sec  Peck  v.  Smith,  1 
Con.  133 ;  Davis  v.  Winslow,  51  Maine,  264  ;  Gerrish  v.  Brown,  lb.  256. 

1  Hargr.  Law  Tracts,  6;  Woolr.  Waters,  31,  32,  33;  Commonwealth  v. 
Charlestown,  1  Pick.  180;  Arundell  v.  M'CulIoch,  10  Mass.  70;  People  w.  Tib- 
betts,  19  N.  Y.  523  ;  Anon.,  1  Mod.  105,  per  Lord  Hate;  Rex  v.  Smith,  Doug. 
441 ;  3  Kent,  Comm.  414;  Rhodes  v.  Otis,  33  Ala.  593;  Ellis  v.  Carey,  30  Ala. 
725.  Contra,  Wilson  v.  Forbes,  2  Dcv.  30,  North  Carolina ;  Veasie  v.  Dwinel, 
50  Maine,  484. 

2  Ford  V.  Lacy,  7  II.  &  Norm.  151. 

3  Rowe  V.  Granite  Bridge  Corp.,  21  Pick.  344,  347,  per  Shaw,  C.  J.;  Burrows 
r.  Gallup,  32  Con.  501. 


476  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.  [Ch.  III. 

[*397]   *  become  so  by  act  of  the  legislature,  or  by  imme- 
morial usage. ^ 

4.  On  the  other  hand,  the  mere  fact  that  a  river  may  be 
navigated  by  boats  or  water-craft  does  not  make  it  a  public 
stream,  if  it  was  made  so  by  deepening  or  widening  a  private 
stream  by  the  owner  of  the  bed  and  banks  thereof.^ 

And  the  capacity  to  be  made  navigable  does  not  make  it  a 
public  river,  unless  it  shall  have  been  made  navigable  and 
declared  a  public  higliway  by  legislative  act.^ 

5.  The  difficulty  has  been  in  finding  any  discriminating 
test,  which  may  be  applicable  alike  to  all  streams,  in  deter- 
mining whether  their  capacity  is  of  a  character  to  make  them 
public  in  their  use  or  not.  In  England,  the  Thames  above 
London  Bridge  was  held  to  be  a  public  river .^  And  the  Way 
and  Severn,  as  well  as  sundry  other  streams.^ 

6.  There  seems  to  be  a  rule,  pretty  generally  received  in 
the  United  States,  that  all  streams  are  highways  which  are 
capable  of  floating  to  market  the  produce  of  the  mines,  for- 
ests, or  tillage  of  the  country  through  which  they  flow.^ 

But  if  it  be  above  tide-water,  the  burden  of  proving  it  to 
be  a  public  river  is  upon  the  party  making  the  claim.'' 

7.    In  New  York  and  Maine,  a  stream  seems  to  be 
[*398]   a  *public  one  if  it  is  capable  of  floating  logs  thereon 

1  Hargr.  Law  Tracts,  8,9;  Callis,  Sewers,  216;  Woolr.  Waters,  31,  33; 
M'Manns  v.  Carmichael,  3  Iowa,  1  ;  State  v.  Gilmanton,  10  N.  H.  467  ;  Col- 
lins V.  Benbury,  5  Ired.  118  ;  Berry  v.  Carle,  3  Me.  269  ;  Baker  v.  Lewis,  33  Penn. 
St.  301  ;  Morgan  v.  King,  30  Barb.  9. 

All  "  navigable  rivers  "  in  the  territory  northwest  of  the  Ohio  are  declared 
public  highways  by  act  of  Congress.  2  Dane,  Abr.  691  ;  Tyler  v.  The  People, 
8  Mich.  320. 

2  Hargr.  Law  Tracts,  9  ;  Woolr.  Waters,  33;  Wadsworth  v.  Smith,  11  Me. 
278.  See  People  v.  Piatt,  17  Johns.  195;  Veasie  v.  Dwinel,  50  Maine,  479, 
486. 

8  Gates  V.  Wadlington,  1  M'Cord,  580. 

*  Rex  V.  Smith,  Doug.  441. 

s  Hale,  De  Jure  Maris,  Hargr.  Law  Tracts,  9. 

6  Browne  v.  Scofield,  8  Barb.  239  ;  Stuart  v.  Clark,  2  Swan,  9 ;  Walker  v. 
Shepliardson,  4  Wise.  486;  Lorman  v.  Benson,  8  Mich.  18;  Morgan  v.  King, 
30  Barb.  9. 

'  Khodcs  V.  Otis,  33  Ala.  578  ;  Ellis  v.  Carey,  30  Ala.  725. 


Sect.  9.]  RIGHTS   OF    PASSAGE   IN   PUBLIC   STREAMS.  477 

to  market.  If  this  were  true  only  for  a  few  clays  in 
the  year,  however,  it  would  not  fee  sufficient.^  But  if  a 
stream  will  float  logs,  for  several  weeks  in  a  year,  the  dis- 
tance of  a  hundred  and  fifty  miles,  it  would  be  a  navigable 
stream  for  that  purpose.  And  the  doctrine  is  said  to  be  one 
of  common  law  in  Maine,  that  all  rivers,  capaljle,  in  their 
nature,  of  being  used  for  commerce,  or  the  floating  of  logs, 
rafts,  boats,  or  vessels,  are  highways,  and  may  be  used  by 
the  public  for  these  purposes  whenever  their  condition  is 
such  as  to  admit  of  such  use.^ 

In  North  Carolina  and  Pennsylvania  the  ebb  and  flow  of 
the  tide  is  no  test  of  a  river  being  navigable.'^ 

Rock  and  Fox  Rivers  in  Wisconsin  are  held  to  be  navi- 
gable streams.* 

8.  In  California,  rivers  are  not  regarded  navigable  unless 
sufficient  to  float  a  vessel  used  in  transporting  freight  or  pas- 
sengers, or  rafts  of  timber.  But  a  mere  capacity  to  float  a 
log  would  not  be  sufficient.'^ 

In  Alabama  the  court  held  that  a  creek  which  could  only 
be  used  for  floating  timber  for  six  or  seven  miles,  where  there 
were  no  extensive  forests  to  be  accommodated  by  such  a  use, 
and  could  only  be  used  for  floating  rafts  occasionally,  accord- 
ing to  the  state  of  the  water,  could  not  be  deemed  to  be  a 
public,  navigable  stream,  although  it  might  be  used  to  ad- 
vantage by  a  single  individual.  "  The  public  must  be  inter- 
ested before  it  can  become  a  public  highway."  And  whether 
a  stream  is  a  public  highway  or  not  is  a  question  of  law,  after 
the  facts  are  ascertained.^ 

1  Curtis  V.  Keesler,  14  Barb.  511  ;  Morgan  v.  King,  IS  Barb.  277,  288.  See 
Munson  v.  Hungerford,  6  Barb.  265. 

^  Morgan  v.  King,  supra;  Brown  v.  Chadbournc,  31  Me.  9  ;  Moor  v.  Veazie, 
32  Me.  343,  357  ;  Treat  v.  Lord,  42  Me.  552,  562 ;  Knox  v.  Chaloner,  42  Me. 
150  ;  cites  1  Allen,  N.  B.  326. 

^  Wilson  V.  Forbes,  2  Dev.  30 ;  Ingraham  v.  Threadgill,  3  Dev.  59  ;  Carson 
V.  Blazer,  2  Binn.  475 ;  Barclay  Road  v.  Ingham,  36  Penn.  201  ;  Flanagau  v. 
Philadelphia,  42  Penn.  229. 

*  Wood  V.  Hustis,  17  Wise.  417  ;  Cobb  v.  Smith,  16  Wis.  661  ;  Harrington  v. 
Edwards,  17  Wise.  586. 

^  American  River  Water  Co.  v.  Amsden,  6  Cal.  443. 

6  Rhodes  V.  Otis,  33  Ala.  578. 


478  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

9.  In  Alabama,  the  right  of  property  in  navigable  streams 

is  vested  in  the  State,  and  the  citizens  have  a  right 
[*399]  of  *easemcnt  in  the  banks  of  the  same  for  the  pur- 
poses of  using  them  for  navigation.^  And  this  ex- 
tends to  every  watercourse  in  the  State  suitable  for  the  or- 
dinary purposes  of  navigation,  as  well  above  as  below  the 
tide,  and  as  such  they  are  highways,^ 

In  Mississippi,  Illinois,  Iowa,  Minnesota,  and  Missouri,  the 
Mississippi  River  is  held  to  be  a  public  highway.^ 

10.  In  Pennsylvania,  the  Ohio,^  Alleghany,^  and  Susque- 
hanna ^  are  held  to  be  public  highways.  So  is  the  Ohio  in 
Indiana "  and  in  Ohio.^  And  the  Hudson,  whether  above  or 
below  the  tide,  is  a  navigable  river  in  New  York.^  So  are 
the  Schuylkill,^°  Youghiogheny  and  Towanda  "  and  Monon- 
gahela^^  and  Mohawk.^^  And  these,  though  expressly  stated 
to  be  such,  may  be  taken  rather  as  representatives  than  as 
exceptions  in  respect  to  most  of  the  States  wherein  there  are 
considerable  streams  of  water,  for,  in  other  cases,  the  princi- 
ple is  extended  to  all  streams  in  New  York  which  are  actu- 
ally navigable,  whether  above  or  below  tide-waters.^*  The 
same  is  the  case  in  Massachusetts,^^  In  New  Jersey  the  doc- 
trine is  stated,  that  navigable  rivers,  ports,  bays,  and  coasts 

I  Mayor,  &c.  v.  Eslava,  9  Port.  577,  604. 
■^  Bullock  V.  Wilson,  2  Port.  436. 

3  Morgan  v.  Reading,  3  Smedes  &  M.  366,  407 ;  People  v.  St.  Louis,  5  Gilm. 
351;  O'Fallon  v.  Daggett,  4  Mo.  343;  Godfrey  v.  City  of  Alton,  12  111.  29; 
M'Mauus  V.  Carmichacl,  3  Iowa,  1  Schurmeier  v.  St.  P.  &Pac.  R.  R.,  10  Min.  82. 

4  Baker  v.  Lewis,  33  Penn.  St.  301. 

5  Dalrymple  v.  Mead,  1  Grant's  Gas.  197. 

6  Commonwealth  v.  Fisher,  1  Penn.  462  ;  Carson  v.  Blazer,  2  Binn.  475. 

7  Porter  r.  Allen,  8  Ind.  1. 

8  Gavit  V.  Chambers,  3  Ohio,  495. 

9  Palmer  v.  Mulligan,  3  Caines,  307  ;  Hooker  v.  Cummings,  20  Johns.  90. 
w  Flanagan  v.  Philadelphia,  42  Penn.  230. 

II  Barclay  Road  v.  Ingham,  36  Penn.  200. 

1^  Monongahcla  Bridge  v.  Kirk,  46  Penn.  120. 
13  People  V.  Canal  Comrs.  33  N.  Y.  461. 

1*  People  V.  Piatt,  17  Johns.  195,  211  ;  Shaw  v.  Crawford,  10  Johns.  236  ;  Post 
V.  Pcarsall,  22  Wend.  425. 
15  Commonwealth  v.  Chapin,  5  Pick.  199  ;  Knight  v.  Wilder,  2  Cush.  208. 


Sect.  9.]         RIGHTS   OF   PASSAGE   IN   PUBLIC   STREAMS.  479 

of  the  sea  are  common  to  all  citizens  for  passing  over,  fishing, 
or  fowling.^ 

The  public  are  held  to  have  a  right  of  way  in  all  navi- 
gable  streams   in   Indiana^   and  Ohio.^      And  the 
same,  though  *applied  to  the  river  Raisin,  was  held   [*400] 
to  be  the  law  of  Michigan.*     And  all  navigable  riv- 
ers are  highways  in  Delaware.^ 

11.  So  in  Connecticut  and  New  Hampshire,  the  Connecti- 
cut River  has  been  held  to  be  a  public  highway  for  all  citi- 
zens, for  the  purposes  of  boating  and  rafting,  it  having  become 
so  in  the  latter  State  by  long  usage.  And  in  Maine,  all  riv- 
ers above  the  flow  of  tide  which  have  long  been  used  for  tho 
passage  of  boats,  rafts,  and  the  like,  are  public  highways, 
and  may  be  used  accordingly.  And  this  extends  to  passing 
upon  the  ice  of  these  streams  when  frozen.^ 

In  consequence  of  the  superior  capacity  of  the  rivers  in 
America  for  practical  navigation  over  those  in  England, 
there  is  a  general  tendency  to  regard  the  civil  rather  than 
the  common  law,  in  determining  whether  a  stream  is  navi- 
gable or  not.  If  the  same  is  large  enough  to  admit  of  navi- 
gation, it  partakes  of  the  character  of  a  navigable  river, 
although  it  is  not  affected  by  the  flood  or  ebb  of  the  tide. 
Such  rivers  are  regarded  as  highways  which  it  is  unlawful 
to  obstruct.  And  in  some  of  the  States  the  principle  of  the 
common  law  is  applied,  that  the  riparian  owner  is  bounded 
by  the  low-water  mark  of  the  stream,  instead  of  extending 
to  its  thread,  as  is  the  case  with  streams  at  common  law 
where  there  is  no  tide.  Thus  in  Pennsylvania,  low-water 
mark  is  the   boundary  of  riparian   proprietorship.''     While 

1  Arnold  v.  Munday,  1  Halst.  1.     See  O'Fallon  v.  Daggett,  4  Mo.  343. 

2  Cox  V.  State,  3  Blackf.  193. 

3  Gavit  V.  Chambers,  3  Ohio,  495. 

*  La  Plaisance  Bay  Harbor  Co.  v.  Monroe,  Walk.  Cli.  155;  Lorraan  v.  Ben- 
son, 8  Mich.  18;  Rice  v.  Ruddiman,  10  Mich.  141. 

5  Bailey  v.  Pliiladelphia  W.  &  B.  R.  R.  Co.,  4  Harringt.  389. 

0  Scott  V.  Willson,  3  N.  H.  321  ;  Adams  v.  Pease,  2  Conn.  481  ;  Berry  v. 
Carle,  3  Me.  269 ;  Spring  v.  Russell,  7  Me.  273  ;  Ficnch  v.  Camp,  18  Me.  433. 

7  Flanagan  v.  Philadelphia,  42  Penn.  229  ;  M'Keeu  u.  Delaware  Division,  &c., 
49  Penn.  440. 


480  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

in  some  of  the  States  bounding  on  the  Mississippi,  it  is  the 
tliread  of  that  river. ^  A  like  doctrine  to  that  of  Pennsyl- 
vania is  maintained  in  New  York.^  In  Maine,  the  Penobscot 
above  tide-water  is  a  highway,  but  not  a  navigable  stream.^ 
But  it  seems  that,  in  one  respect,  streams  navigable  by 
statute  or  custom  here,  are  not  like  those  which  are  so  by 
the  common  law,  since  in  respect  to  the  latter  the  shore,  the 
space  between  high  and  low  water,  belongs  to  the  sover- 
eign ;  here  it  belongs  to  the  owner  of  the  upland,  and  may 
be  built  upon  by  him.* 

The  consequence  of  holding  a  stream  navigable  and  pub- 
lic is,  that  any  obstruction  placed  therein  may  be  treated  as 
a  nuisance,  and  is  the  subject  of  indictment.^ 

From  the  character  of  highways  given  to  streams  which 
are  capable  of  affording  navigation  in  their  natural  state,  no 
one  may  lawfully  obstruct  the  passage  of  boats,  &c.,  by 
erecting  and  maintaining  a  permanent  dam  across  the  same, 
unless  he  make  provision  for  a  convenient  passage  way 
through  or  by  his  dam,  for  the  public  to  use.*"  He  may 
make  and  maintain  temporarily  a  boom  to  collect  and  hold 
the  logs,  though  he  may  not  permanently  .interfere  with 
others  in  floating  logs  upon  the  same  stream." 

This  extends  to  throwing  into  it  any  waste  material,  filth, 
or  trash,  such  as  edgings  of  boards  and  the  like.^     Nor  does 


1  Morgan  v.  Reading,  S.  &  Marsh,  404 ;  Middlcton  v.  Pritchard,  3  Scam. 
510. 

2  People  V.  Canal  Comrs.  33  N.  Y.  461  ;  impugning  former  decisions  upon  the 
same  subject,  Lawler  i'.  Wells,  13  How.  P.  C.  454. 

3  Veasie  v.  Dwinel,  50  Maine,  479. 

*  Flanagan  v.  Philadelphia,  42  Penn.  229  ;  Clement  v.  Burns,  43  N.  H.  609, 
617  ;  Gough  v.  Bell,  2  Zabriskie,  441  ;  Thurman  v.  Morrison,  14  B.  Mon.  367  ; 
O'Fallou  V.  Daggett,  4  Mo.  343. 

6  llhodes  V.  Otis,  33  Ala.  578. 

''  Vcasic  V.  Dwinel,  50  Maine,  479,  484 ;  s.  c,  44  Maine,  167  ;  Davis  v.  Wins- 
low,  51  Maine,  289  ;  Brown  v.  Chadbourne,  31  Maine,  9  ;  Knox  r.  Clialoner,  42 
Maine,  150. 

■^  Gerrish  v.  Brown,  51  Maine,  256  ;  Davis  v.  Winslow,  sup. 

8  Veasie  v.  Dwiacl,  50  Maine,  490  ;  ante,  p.  *282. 


Sect.  9.]         EIGHTS   OF   PASSAGE   IN   PUBLIC   STREAMS.  481 

any  length  of  enjoyment  give  a  party  a  right  to  prescribe  for 
a  public  nuisance.^ 

So  a  party  obstructed  in  the  use  of  a  stream  as  a  highway, 
may  himself  remove  it,  as  was  held  where  one  fastened  his 
raft  of  logs  to  the  bank  in  such  a  manner  as  to  prevent 
another  from  landing  at  his  own  wharf  in  a  boat.^ 

If  one  is  authorized  by  the  legislature  to  erect  a  bridge 
across  a  navigable  stream,  and,  in  so  doing,  he  flows  back 
the  water  on  to  another's  land,  he  is  liable  in  damages  to  the 
owner,  and  the  act  of  the  legislature  merely  justifies  him  as 
against  an  indictment  for  a  nuisance  to  a  public  highway.^ 

But  a  state  may  authorize  obstructions  to  be  maintained  in 
navigable  streams  within  it.^  And  if  the  natural  and  neces- 
sary effect  of  a  bridge  in  a  highway  or  railroad  is  to  flow 
back  water  on  to  another's  land,  it  is  regarded  as  one  of  the 
incidental  damages  which  are  to  be  estimated  and  paid  for 
upon  the  location  of  the  same,  and  not  the  ground  of  an 
action  on  the  case  as  for  a  wrong  done.^ 

12.  While  the  doctrine  as  to  a  public  easement  in  navi- 
gable streams,  using  the  term  in  its  broader  sense  as  above 
stated,  seems  to  be  well  settled,  the  only  question  being, 
what  streams  answer  to  that  description,  the  respective 
rights  of  the  owners  of  the  banks,  and  of  those  navigating 
the  streams,  have  been  variously  stated  by  different  courts 
and  writers,  and  are  not,  perhaps,  uniform  at  this  day,  under 
the  laws  of  the  different  States. 

As  a  general  proposition,  though  there  are  exceptions  to 

1  Veasie  v.  Dwinel,  50  Maine,  496.  Commonwealth  v.  Upton,  6  Gray,  476  ; 
People  V.  Cunningham,  1  Denio,  536  ;  Davis  v.  Winslow,  51  Maine,  293 ;  Ger- 
rish  V.  Brown,  lb.  256. 

-  Harrington  v.  Edwards,  17  Wis.  586. 

■^  Eastman  v.  Company,  44  N.  H.  143;  Crittenden  v.  Wilson,  5  Cow.  165  ; 
Ang.  Water  C.  §  476  ;  Thacher  v.  Dartmouth  Bridge,  18  Pick.  502 ;  Gardner  v. 
Newburgh,  2  Johns  Ch.  162  ;  Hooksett  v.  Amoskeag  Co.,  44  N.  H.  105. 

*  Flanagan  v.  City  of  Phila.,  42  Penn.  231  ;  Wilson  v.  Blackbird  Creek,  &c. 
2  Peters,  250  ;  U.  S.  v.  New  Bedford  Bridge,  1  W.  &  Minot,  407  ;  Cobb  v.  Smith, 
16  Wis.  661. 

s  Sprague  v.  Worcester,  13  Gray,  193;  mite,  p.  *224. 
31 


482  THE   LAW    OF   EASEMENTS   AKD    SERVITUDES.         [Cii.  III. 

this  in  some  States  in  respect  to  large  rivers,  like  the  Missis- 
sippi, the  owner  of  land  upon  the  bank  of  a  stream  in  which 
the  tide  does  not  ebb  and  flow,  is  owner  of  the  land  under 
the  stream  to  its  centre,  or  filum  aqucc.  While,  if  it  be  one 
in  which  the  tide  does  ebb  and  flow,  he  only  owns  to  the 

water's  edge  at  high  water.^ 
[*401]       *But  the  riparian  proprietor  holds,  in  the  first- 
mentioned  case,  subject  to  the  iise  of  the  stream  as  a 
highway  over  it,  and  may  do  nothing  to  obstruct  such  use.^ 
And  this  doctrine  applies  to  the  small  lakes  in  the  country.'^ 

But  if  lands  border  upon  what  are,  technically,  navigable 
streams,  the  tide  ebbing  and  flowing  therein,  and  the  public 
see  fit  to  stop  the  use  of  such  stream  as  a  highway,  such 
riparian  proprietors  have  no  better  right  for  compensation 
for  such  appropriation  than  any  other  individuals  in  the  com- 
munity, since  they  own  no  part  of  the  bed  of  the  stream.* 

13.  In  some  of  the  States  the  courts  have  been  inclined 
to  hold,  that  the  right  on  the  part  of  the  public  to  use  a 
stream  as  a  liighway,  by  boats,  rafts,  and  the  like,  carries 
with  it  the  right  to  land  upon  the  bank  of  such  stream  as 
occasion  may  require,  or  to  secure  boats  to  the  trees  stand- 
ing on  the  bank,  and  for  like  uses.  Thus  in  Mississippi,  the 
court,  in  speaking  of  the  right  of  the  navigator,  say,  that  in 
case  of  necessity  he  xnduj  perhaps  use  the  bank,  or  trees  grow- 
ing upon  it,  to  secure  his  boat  upon.^ 

The  extent  of  the  right  which  the  public  may  exercise  in 
the  banks  of  rivers,  in  connection  with  the  use  of  the  stream 

1  2  Washb.  Real  Prop.  6.32,  6.34  ;  Bard  well  v.  Ames,  22  Pick.  354,  as  to  the 
Connecticut  River;  Lorman  v.  Benson,  8  Mich.  18,  as  to  Detroit  River.  But 
see,  as  to  the  Mississippi,  M'Manus  v.  Carmichael,  3  Iowa,  1  ;  D.  8,  3,  17.  See,  as 
to  the  ownership  of  the  shores  of  American  lakes  and  rivers,  Clement  v.  Burns, 
43  N.  H.  616  etseq.;  ante,  p.  *399  ;  Grant  v.  Davenport,  18  Iowa,  185. 

2  Cox  V.  State,  3  Bhickf.  193;  Gavit  v.  Chambers,  3  Ohio,  495;  People  v. 
St.  Louis,  5  Gilm.  351  ;  Morgan  v.  King,  30  Barb.  9. 

8  Rice  V.  Ruddiman,  10  Mich.  143. 

*  Bailey  v.  Phihi.  W.  &  B.  R.  R.  Co.,  4  Harringt.  389. 

6  Morgan  v.  Reading,  3  Sinedes  &  M.  366,  407.  See  also  Lewis  v.  Keeling, 
I  Jones  (Law),  299.  But  see  Blundcll  v.  Catterall,  5  Barnew.  &  Aid.  268,  per 
Bayley,  J.;  Inst.  2,  1,  4. 


Sect.  9.]         EIGHTS   OF   PASSAGE   IN   PUBLIC   STREAMS.  483 

as  a  highway,  within  the  former  Territory  of  Louisiana, 
seems  to  be  somewhat  peculiar,  and  to  have  been  borrowed 
from  the  Spanish  legislation  to  which  it  once  was  subject. 
The  matter  is  considered  in  the  case  of  O'Fallon  v.  Daggett, 
wherein  M'Girk,  J.  cites  the  language  of  the  Partidas,  sub- 
ject to  which  the  grants  along  the  Mississippi  were  made  by 
the  Spanish  crown,  that  "  rivers,  ports,  and  public  roads  be- 
long to  all  men  in  common,  so  that  strangers  coming  from 
foreign  countries  may  make  use  of  them  in  the  same 
manner  *as  the  inhabitants  of  the  place  where  they  [*402] 
are,  might  do  ;  and  though  the  dominion  or  property 
of  banks  of  rivers  belongs  to  the  owner  of  the  adjoining  es- 
tate, nevertheless  every  man  may  make  use  of  them  to  fas- 
ten his  vessel  to  the  trees  that  grow  thereon,  or  to  refit  his 
vessel,  or  to  put  his  sails  or  merchandise  there.  ,  So  fisher- 
men may  put  and  expose  their  fish  for  sale  there,  and  dry 
their  nets,  or  make  use  of  the  banks  for  all  like  purposes 
which  appertain  to  the  art  or  trade  by  which  they  live." 
The  court  accordingly  recognize  these  rights,  but  restrict 
them,  in  the  case  of  the  navigator,  to  cases  where,  in  the  act- 
ual prosecution  of  a  voyage,  his  vessel  needs  repairs  to  ena- 
ble her  to  proceed,  but  leaving  the  bank,  if  private  property, 
as  soon  as  practicable.  The  right  must  be  limited  to  cases 
of  emergency,  and  not  extended  to  cases  of  mere  conven- 
ience. The  navigator  cannot  obstruct  the  owner's  enjoy- 
ment of  his  land  upon  the  bank  beyond  the  reasonable  limits 
of  necessity  imposed  on  him  at  the  time.^ 

14.  In  Pennsylvania,  upon  the  ground  that  the  Alleghany 
is  a  public  river  for  the  transit  of  timber,  it  was  held,  that 
any  one  wishing  to  make  up  a  raft  to  be  run  upon  the 
stream  had  a  right  to  make  use  of  an  eddy  in  the  stream 
for  that  purpose  for  a  reasonable  time,  to  the  exclusion  of 
another,  if  he  was  the  first  occupant  thereof,  while  its  pools, 
bars,  inlets,  and  fastening-places  are  open  and  free  for  the 

1  O'Fallon  v.  Daggett,  4  Mo.  343.  See  4  Hall,  Law  Journ.  550;  post,  sect. 
12,  pi.  13. 


484  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Ch.  III. 

use  of  every  one  while  using  it,  consistently  with  the  same 
right  being  enjoyed  by  every  one  else.^ 

15.  So,  the  Ohio  having  been  declared  by  that  State  a 
public  stream  or  highway  for  the  passage  of  boats  and  rafts, 
it  has  been  held  that  it  carried  with  it  the  right  to  moor  boats 
and  other  craft  at  "  the  well-known  landings  and  wharves  on 
the  stream  " ;  and  that  one  who  "  moors  his  craft  at  an  ac- 
customed landing  must  be  careful  to  leave  sufficient 

[*403]   room  *for  the  passer-by On  the  other  hand, 

the  vessel  in  motion  must,  if  possible,  steer  clear  of, 
and  avoid,  the  one  moored  or  at  anchor."  ^ 

It  will  be  perceived  that  neither  of  these  cases  goes  the 
length  of  the  case  cited  from  Missouri,  as  to  landing  at  any 
point  the  boatman  might  see  fit  along  the  bank  of  a  naviga- 
ble stream.  Nor  do  they  state  how  the  places  indicated  be- 
came "  well-known  "  or  "  accustomed  "  "  landings." 

That  the  public  may  acquire  a  right  to  use  such  "  land- 
ings" by  dedication  on  the  part  of  the  owner  of  the  soil,  and 
may  thereby  acquire  an  easement  in  an  individual  owner's 
land,  is  now  well  settled,  as  has  been  heretofore  shown.  It 
was  so  held  in  Godfrey  v.  City  of  Alton,  in  respect  to  the 
landing-place  at  that  city  upon  the  banks  of  the  Mississippi.^ 

But  the  right,  for  instance,  to  raft  logs  in  a  stream  does 
not  involve  the  right  of  booming  them  upon  private  property 
for  safe  keeping  and  storage^ 

16.  In  regard  to  the  right  to  land  upon  other  points  upon 
the  banks' of  a  navigable  stream  than  those  which  have  in 
some  way  become  public  landings,  the  law  would  seem  to 
confine  it  to  cases  of  necessity,  where,  in  the  proper  exercise 
of  the  right  of  passage  upon  the  stream  of  water,  it  becomes 
unavoidable  that  one  should  make  use  of  the  bank  for  land- 
ing upon,  or  fastening  his  craft  to,  in  the  prosecution  of  his 
passage. 

'  Dalryniplc  v.  Mead,  1  Grant.  Cas.  197. 

2  Baker  v.  Lcwi.s,  33  Penn.  St.  301. 

'■^  Godfrey  v.  City  of  Alton,  12  111.  29 ;  ante,  chap.  1,  sect.  5. 

*  Lorman  v.  Benson,  8  Mich.  33  ;  Harrington  v.  Edwards,  17  Wis.  586. 


Sect.  9.]         EIGHTS   OF   PASSAGE   IN   TUBLIC   STREAMS.  485 

Thus  in  Maine  it  has  been  held  that,  if  necessary  in  driv- 
ing logs  upon  one  of  these  streams  for  one  to  go  upon  its 
bank  in  order  to  remove  a  log  resting  upon  or  against  such 
bank,  he  would  have  a  right  so  to  do.  But  he  would  not 
have  a  right  to  use  such  bank  for  towing  logs  along  the 
stream. 1 

*17.  The  doctrine  of  dedication  of  property  to  [*404] 
public  use,  so  far  as  it  partakes  of  the  nature  of  a 
grant,  forms  an  exception  to  an  almost  universal  rule,  that 
a  right  by  grant  or  prescription  can  only  be  acquired  by 
some  person  in  existence  who  may  be  a  grantee  and  grantor 
in  a  deed.  No  case  can  be  found  in  the  English  books 
where  a  grant  ha?  enured  to  the  personal  use  of  all  man- 
kind. The  public  cannot,  therefore,  claim  an  easement  by 
prescription,  though  corporations  and  individual  inhabitants 
of  towns  may.^ 

The  doctrine  of  dedication,  moreover,  applies  generally 
to  rights  like  those  of  public  streets  and  highways,  open 
commons  or  squares,  landing-places  upon  navigable  streams, 
and  the  like.  And  though  in  one  case  it  was  held  that  a 
spring  of  water  might  be  reserved  for  public  use  in  laying 
out  a  village  or  city,  it  may  be  regarded  rather  as  a  custom- 
ary right  of  the  residents  of  a  particular  locality,  than  as  a 
public  right  like  that  of  passing  along  a  highway  or  navi- 
gating a  public  stream.^ 

18.  In  the  first  place,  there  is  no  common-law  right  to 
make  use  of  the  banks  of  a  stream  in  navigating  it.*  Nor 
is  there  a  general  custom  for  persons  navigating  such  stream 
to  deposit  goods  on  the  banks  thereof.''     And  even  if  such 

1  Treat  v.  Lord,  42  Me.  552  ;  Ball  v.  Herbert,  3  T.  R.  253,  260.  See  also 
Lewis  V.  Keeling,  1  Jones  (Law),  299  ;  Regina  v.  Cluworth,  6  Mod.  163. 

2  Cincinnati  v.  White,  6  Peters,  436 ;  Pearsall  v.  Post,  20  Wend.  HI;  Curtis 
V.  Keesler,  14  Barb.  511.     See  ante,  chap.  1,  sect.  5. 

3  M'Connell  v.  Lexington,  12  Wheat.  582.  See  Cincinnati  v.  White,  supra. 
See  ante,  chap.  1  sect.  5. 

*  Ball  V.  Herbert,  3  T.  R.  253,  260.     See  Blundell  v.  Catterall,  5  Barnew.  & 
Aid.  268  ;  3  Kent,  Coram.  417,  note  ;  Bickel  v.  Polk,  5  Harringt.  325. 
5  Chambers  v.  Furry,  1  Yeates,  167. 


486  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cii.  III. 

a  riglit  is  exercised  by  individuals,  upon  one  or  more  places 
upon  the  bank  of  such  stream,  it  does  not  give  the  public  a 
right  to  do  the  same,  against  the  consent  of  the  owner.^ 

It  seems  that  such  right  of  landing  upon  the  es- 
[*405]  tate  of  *  another  may  be  acquired  by  the  public  as 
an  easement,  for  the  pur{)0ses  of  a  passage.^ 
19.  What  may  be  claimed  as  a  public  easement  by  way  of 
dedication  was  elaborately  considered  by  the  court  of  New 
York,  in  Pearsall  v.  Post,  already  referred  to.  The  question 
in  that  case  was,  whether  a  public  landing-place  upon  the 
bank  of  waters  navigable  at  common  law,  it  being  in  that 
case  the  shore  of  Long  Island,  could  be  claimed  as  a  matter 
of  right  for  all  the  citizens.  It  will  be  •bserved,  the  claim 
is  not  set  up  as  a  right  necessary  to  the  prosecution  of  a  con- 
tinuous passage  by  water,  nor  as  being  part  of  a  highway 
over  which  the  public  passed  to  reach  other  localities,  to 
which  such  way  led.  The  court  reviews,  at  considerable 
length,  the  doctrine  of  the  English,  Scotch,  and  American 
cases,  wherein  it  is  clearly  maintained  that  the  right  of 
streets,  highways,  and  public  passages  may  be  gained  to  the 
public  by  dedication.  But  they  deny  that  any  English  case 
warrants  a  claim,  by  dedication,  to  anything  more  than  the 
use  of  a  passage-way,  or  of  a  public  square  and  the  like,  or 
recognizes  any  existing  right  in  the  public,  irrespective  of 
living  within  the  limits  of  some  particular  corporation,  to  en- 
joy the  use  of  the  soil  of  another.  They  refer  to  Waters  v. 
Lilley^  as  sustaining  these  views  of  the  court,  and  criticise 
the  language  of  the  court  in  Coolidge  v.  Learned  ^  that  the 
right  there  claimed,  that  the  locus  in  quo  was  a  public  land- 
ing-place which  every  citizen  of  the  Commonwealth  had  a 
right  to  use,  "  is  a  prescriptive  right,  and  as  such  is  well 
pleaded,"  as  being  inconsistent  with  the  idea  of  a  prescrip- 

'  Bethunc  v.  Turner,  1   Me.  Ill  ;  Blundell   v.   Catterall,  5   Barnew.  &  Aid. 
253,  268. 
■■i  Chambers  v.  Furry,  1  Yeates,  167  ;  Cooper  v.  Smith,  9  Scrg.  &  11.  26,  33. 
3  Waters  ?;.  Lillcy,  4  Pick.  14.5. 
*  Coolidgo  V.  Learned,  8  Tiek.  504. 


Sect.  9.]  RIGHTS   OF   PASSAGE   IN   PUBLIC   STREAMS.  487 

tion  which  implies  somebody  to  be  grantees,  as  well  as  some- 
body to  grant,  which  that  indefinite  thing  the  public  could 
not  be. 

The  right  claimed  in  Pcarsall  v.  Post  was  that  of  landing 
upon  the  plaintiff's  premises,  occupying  them  as  a 
*place  of  deposit  of  articles  in  transit,  which  the  pub-   [*406] 
lie  had  been  accustomed  to  do  for  more  than  twenty 
years.     The  right  was  denied  both  in  the  Supreme  Court, 
and,  upon  revision,  by  the  Court  of  Errors  of  New  York, 
who  held  that  the  doctrine  of  dedication  could  not  be  carried 
beyond  using  it  for  purposes  like  those  of  public  squares, 
markets,  highways,  and  promenades,  excluding  the  right  of 
individuals  to  occupy  the  land  of  another  for  private  use.^ 

And  it  may  be  incidentally  remarked,  that  the  mere  leav- 
ing an  open  space  between  one's  house  and  the  line  of  the 
street  or  highway,  is  not  a  dedication  of  the  same  to  the  pub- 
lic.2 

20.  It  was  held  that  if  a  man  were  to  construct  a  channel 
through  his  own  land,  whereby  the  water  of  a  navigable 
stream  is  made  to  flow  through  the  same,  he  might  be  com- 
pelled to  stop  the  same  as  being  a  public  nuisance,  and  if  he 
stopped  or  obstructed  the  use  of  the  stream  as  a  highway, 
the  public  might  use  his  new  channel  in  the  same  manner  as 
they  had  done  the  original  stream.  But  it  would  not  give 
them  tliat  right,  if  the  obstruction  to  the  use  of  the  stream 
was  caused  by  another,  and  not  by  the  owner  of  the  land 
through  which  the  artificial  channel  was  constructed.^ 

But  if  the  public  use  such  artificial  channel  for  twenty 
years  for  purposes  of  navigation,  they  acquire  a  right  to  the 
same  by  the  way  of  dedication.* 

21.  In  one  respect,  a  public  company,  incorporated  with 
authority  to  erect  a  dam  across  a  public  stream,  would  not 

1  Pearsall  v.  Post,  20  Wend.  Ill  ;  22  Wend.  425,  See  Cortelyou  v.  Van 
Brundt,  2  Johns.  3.57. 

^  Biddle  v.  Ash,  2  Ashm.  211.  220. 

3  Dwinel  v.  Barnard,  28  j\Ic.  554,  562  ;  Dwinel  v.  Veazie,  44  Me.  167. 

*  Delaney  v.  Boston,  2  Harringt.  489. 


488  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

have,  in  respect  to  such  dam,  as  broad  rights  as  a  riparian 
proprietor  who  should  have  erected  the  same  dam  for  his 

own  purposes.  In  the  latter  case,  if  in  the  ordinary 
[*407]   state  *of  the  stream,  the  water  raised  by  the  dam 

did  not  set  back  on  to  the  proprietor's  land  above, 
the  dam-owner  would  not  be  responsible  if,  at  times,  the 
swell  in  the  stream  overflowed  the  same  ;  whereas,  if  it  were 
done  by  a  dam  erected  by  such  company,  they  would  be  re- 
sponsible for  the  damages  thereby  occasioned.^ 


SECTION  X. 

OF   RIGHTS   IN   WATER   BY   CUSTOM. 

1.  Custom  as  distinguished  from  dedication. 

2.  Does  not  extend  to  taking  the  profits  of  land. 

3.  What  may  be  acquired  by  custom. 

4.  One  may  claim  a  right  by  custom,  another  by  prescription. 

5.  Easement  of  bathing  in  another's  stream. 

6.  How  such  easement  or  custom  may  be  defeated. 

1.  What  has  been  said  of  the  distinction  there  is  between 
a  dedication  and  prescription  leads  to  a  consideration  of 
those  easements  which  belong  to  the  inhabitants  of  certain 
localities,  as  distinguished  from  a  dedication,  in  the  proper 
sense  of  the  term.  Such  of  these  easements,  however,  only 
as  relate  to  the  use  and  enjoyment  of  water  will  now  be 
considered.  Where  easements  of  this  character  belong  to 
such  inhabitants,  not  personally,  nor  by  reason  of  holding 
any  particular  estate  to  which  the  same  has  attached  as  a 
particular  easement,  they  are  said  to  exist  by  custom.  In 
technical  accuracy,  they  are  not,  indeed,  easements,  but  are 
sufficiently  like  them  to  be  treated  of  under  that  general 
character. 

2.  Nothing  can  be  claimed  in  this  right  which  partakes 
of  the  profits  or  productions  of  the  land   in   which   it  is 

1  Monongahela  Navigation  Co.  v.  Coon,  6  Penn.  St.  379. 


Sect.  10.]  RIGHTS   IN   WATER   BY   CUSTOM.  489 

claimed.     Thus  one  may  claim  a  right  by  custom  to  take 

water  from  a  stream  in  another's  land  for  culinary 

or  *domestic  purposes.     But  lie  cannot,  under  such   [*408] 

custom,  claim  a  right  to  catch  and  carry  away  fish 

in  the  stream.^ 

3.  Mr.  Woolrych  thus  states  the  law  upon  this  subject : 
"  Inhabitants  or  particular  persons  residing  in  certain  vills 
may  also  have  a  right  to  water  their  cattle  in  rivers  at 
spots  where  they  have  had  an  immemorial  usage  so  to  do, 
and  there  may  be  other  customs  and  prescriptions  to  use 
water  in  various  ways."  ^ 

In  Race  v.  Wood,  the  claim  set  up,  and  sustained  by  the 
court,  was  an  immemorial  custom  in  the  township  of  H. 
for  all  the  inhabitants  for  the  time  being  in  the  said  town- 
ship to  have  the  liberty  and  privilege  to  have  and  take  water 
from  a  certain  well  or  spring  of  water  in  a  certain  close,  and 
to  carry  the  same  to  their  own  houses  to  be  used  and  con- 
sumed therein  for  domestic  purposes.  The  same  would  have 
been  the  law  had  it  been  a  running  stream  of  water.  And 
a  claim  of  a  right  to  take  water  docs  not  come  within  the 
principle  of  claiming  a  right  to  take  sand  or  gravel,  grass, 
turves,  or  uny  profit  a  prendre? 

Lord  Campbell,  in  giving  the  opinion  in  Race  v.  "Wood, 
cites  an  early  analogous  case  from  the  Year  Book,^  in  which 
such  a  right  is  spoken  of  as  a  prescription,  though,  as  he 
remarks,  "There  is  no  prescription  stated  in  a  que  estate.''^ 
And  there  are  other  authorities  for  holding  that  "  prescrip- 
tion applies  only  to  incorporeal  hereditaments  ;  and  whether 
the  right  claimed  be  considered  as  strictly  a  custom  or  pre- 
scription the  principle  is  the  same.     The  only  material  dis- 


1  Bland  v,  Lipscorabe,  4  Ellis  &  B.  714,  note;  Griinstead  v.  Marlowe,  4 
T.  R.  717 ;  ante,  chap.  1,  sect.  4,  pi.  15-19. 

'^  Woolr.  Waters,  3.     See  more  fully  as  to  custom,  ante,  chap.  1,  sect.  4. 

3  Race  V.  Wood,  4  Ellis  &  B.  702  ;  Weekly  v.  Wildman,  1  Ld.  Eaym.  407  ; 
Manning  v.  Wasdale,  5  Adolph.  &  E.  758. 

*  15  Edw.  IV.,  fol.  29  A,  pi.  7. 


490  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cn.  III. 

tinction  between  them  is,  that  one  is  local  and  the  other 

personal  in  its  nature."  ^ 
[*409]       *4.   The  purpose  of  the  above  citation  is  rather 

to  show  what  a  custom  is  like  in  its  nature,  than  as 
illustrating  or  limiting  the  extent  of  its  application.  Nor  is 
there  any  incompatibility  in  the  same  easement  being  en- 
joyed by  different  individuals  in  different  rights,  one  claiming 
it  by  custom,  another  by  reason  of  holding  a  particular 
estate  to  which  it  has  become  attached.^ 

5.  Among  the  easements  in  water  known  to  the  common 
law,  which  may  be  mentioned,  is  that  of  bathing  in  ponds  or 
streams  in  another's  land.  Such  an  easement  may  be  ac- 
quired by  prescription  or  exist  by  custom.  But  the  right 
does  not,  as  a  natural  one,  belong  to  the  public,  even  to 
bathe  in  the  sea,  if  to  do  so  the  persons  using  it  must  pass 
over  the  land  of  another.  The  latter  question  was  very 
elaborately  considered  in  Blundell  v.  Catterall,^  where  the 
language  of  Bracton,  borrowed  from  Justinian,  favoring 
such  a  claim  as  of  right,  is  criticised  and  restricted  as  being 
at  variance  with  the  principles  of  the  common  law.  And  if 
it  is  a  right  which  may  not  be  exercised  by  passing  over  the 
land  of  another  bordering  upon  the  sea,  much  less  may  it  be 
done  in  streams  whose  banks  and  beds  are  private  property.* 

6.  But  such  an  easement  or  custom  would  be  subject  to 
be  discontinued  or  destroyed  by  the  erection  of  dwelling- 
houses  in  the  vicinity  of  such  bathing  place,  which  should 
render  it  indecent  to  bathe  there  in  public.^ 

1  Cortelyou  v.  Van  Brundt,  2  Johns.  357;  Pearsall  v.  Post,  20  Wend.  Ill, 
119. 

2  Kent  V.  Waite,  10  Pick.  138. 

s  Blundell  v.  Cattcrall,  5  Barnew.  &  Aid.  268 ;  Bract,  fo.  8. 
*  Woolr.  Waters,  2,  6,  10.     See  the  case  of  the  Westminster  boys  bathing  in 
the  Thames  by  immemorial  custom  at  Millbank.     2  Campb,  89. 
5  Rex  V.  Cremden,  2  Campb.  89. 


Sect.  11.]  RIGHTS   OF   FISHERY.  491 

*SECTION    XI.  [*410"1 

OF   RMJHTS    OF    FISHERY. 

•      1.  Of  rights  to  fish  in  the  sea  and  tide-waters. 

2.  Right  of  soil  carries  right  to  fish  in  streams  not  navigable. 

3.  Easements  of  right  to  fish,  how  gained.^ 

4.  Exclusive  right  of  fishery  in  tide- waters,  how  gained. 

5.  To  gain  it,  the  enjoyment  must  be  exclusive. 

6.  No  prescription  to  fish  in  the  sea  by  a  que  estate. 

7.  How  far  one  may  have  a  several  fishery  independent  of  soil. 

8.  The  owner  of  several  fishery  ma}'  grant  it  alone. 

9.  What  rights  of  fishery  the  owner  of  the  soil  may  grant. 

10.  Three  classes  of  fisheries  defined. 

11.  Easements  only  in  such  as  are  subjects  of  private  property. 

12.  Fisheries  regulated  by  State  statutes. 

13.  Rights  to  fish  subject  to  public  right  of  passage. 

1  Another  easement,  connected  of  course  with  the  pres- 
ence of  water,  is  that  of  a  right  to  take  fish.  To  distinguish 
between  what  would  be  an  easement  in  this  respect,  and 
what  a  man  may  enjoy  at  common  law,  or  as  the  owner  of 
the  estate  within  which  the  right  is  exercised,  it  may  be 
premised  that  a  right  to  take  fish,  including  shell-fish,  in  the 
sea  and  the  arms  and  bays  thereof,  and  in  rivers  where  the 
tide  ebbs  and  flows,  below  high-water  mark,  is  common  to  all 
citizens,  unless  restrained  by  some  act  on  the  part  of  the 
government  or  State  having  sovereignty  over  the  same, 
though  this  does  not  extend  to  a  right  to  land  fish,  when 
taken  or  while  taking  them,  upon  the  soil  of  a  riparian  pro- 
prietor above  high-water  mark.^ 

1  2  Dane,  Abr.  689,  690,  693;  Mass.  Ordinance,  1641  ;  Col.  Laws,  c.  63; 
Warren  v.  Matthews,  1  Salk.  357  ;  s.  c,  6  Mod.  73  ;  Carter  v.  Muroot,  4  Burr. 
2164;  Hargr.  Law  Tracts,  11  ;  Word  v.  Creswcll,  Willes,  265;  Parker  v.  Cut- 
ler Mill-Dam  Co.,  20  Me.  353,  357  ;  Melvin  v.  Whiting,  7  Pick.  79  ;  Collins 
V.  Benbury,  5  Ired.  118;  Delaware,  &c.  R.  R.  v.  Stump,  8  Gill  &  J.  479,  510  ; 
Woolr.  Waters,  60  ;  Coolidge  v.  Williams,  4  Mass.  140  ;  Lay  v.  King,  5  Day, 
72 ;  Bickcl  v.  Polk,  5  Harringt.  325  ;  Moulton  v.  Lihbey,  37  Me.  485  ;  Westoa 
V.  Sampson,  8  Cush.  357,  351.  The  ordinance  of  1641  extends  the  right  of 
fishing  to  "  great  ponds  "  of  ten  acres  or  more,  in  the  same  manner  as  in  bays, 
coves,'&c.     Colony  Laws,  c.  63. 


492  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  III. 

[*411]  *2.  But  at  common  law  a  right  to  take  fish  be- 
longs so  essentially  to  the  right  of  soil  in  streams 
where  the  tide  does  not  ebb  and  flow,  that,  if  the  riparian 
proprietor  owns  upon  both  sides  the  stream,  no  one  but  him- 
self may  come  within  the  limits  of  his  land  and  take  fish 
there.  And  the  same  rule  applies  so  far  as  his  land  extends, 
to  wit,  to  the  thread  of  the  stream,  where  he  owns  upon  one 
side  only.  Within  these  limits,  by  the  common  law,  his 
right  of  fishery  is  sole  and  exclusive.^ 

3.  But  not  only  may  this  common  right  in  all  the  citizens 
be  superseded  by  an  exclusive  right  in  individuals  to  fish 
within  certain  limits,  but  the  right  of  fishery  incident  to  the 
ownership  of  the  soil  of  a  river  may  be  granted  to  another 
by  the  owner  thereof,  while  retaining  the  soil  and  freehold 
of  the  premises,  either  to  be  enjoyed  in  common  with  him- 
self, or  to  be  exclusively  enjoyed  by  such  grantee  as  a  sep- 
arate incorporeal  hereditament.  And  it  is  but  repeating  a 
familiar  principle,  that  such  rights  may  be  acquired  by  pre- 
scriptive user  and  enjoyment  to  the  same  extent  as  by  grant. 
It  will  be  understood,  unless  otherwise  explained,  that  the 
rights  here  spoken  of  are  such  as  exist  at  common  law,  in- 
dependent of  any  local  laws  or  usages  of  the  several  states  in 
this  country .2 

Thus,  in  speaking  of  the  owner  of  the  land  upon  both  sides 
of  a  stream  having  a  presumptive  right  of  fishing  therein, 
Lord  Hale  remarks :  "  But  special  usage  may  alter  that 
common  presumption,  for  one  man  may  have  the  river,  and 
others  the  soil  adjacent,  or  one  man  may  have  the  river  and 
soil  thereof,  and  another  the  free  or  several  fishing  in  that 


river 


"  3 


1  Case  of  Baune  Fishery,  Davies,  152,  155;  Hargr.  Law  Tracts,  5;  Bract, 
fol.  207  ;  Woolr.  Waters,  87 ;  Chalker  v.  Dickinson,  1  Conn.  382 ;  Waters 
V.  Lilley,  4  Pick.  145 ;  Ingram  v.  Threadgill,  3  Dev.  59  ;  Commonwealth  v. 
Chapin,  5  Pick.  199;  Hooker  v.  Cummings,  20  Johns.  90;  MTarlin  v.  Essex 
Co.,  10  Cush.  304  ;  2  Foiirnel,  Traite  du  Voisinage,  ^  212. 

'^  Woolr.  Waters,  89  ;  per  Yales,  J.,  Carter  v.  Murcot,  4  Burr.  2165. 

*  Hargr.  Law  Tracts,  5. 


Sect.  11.]  RIGHTS   OF   FISHERY.  493 

*4.  So,  in  speaking  of  the  rights  of  all  citizens  to  [*412] 
fish  in  the  sea  and  creeks  and  arms  thereof,  "  as  a 
public  common  of  piscary,"  he  says  that  they  "  may  not, 
without  injury  to  their  right,  be  restrained  of  it,  unless  in 
such  places,  creeks,  or  navigable  rivers,  where  either  the 
king  or  some  particular  subject  hath  gained  a  propriety,  ex- 
clusive of  that  common  liberty."  ^ 

He  then  states  how  an  individual  may  acquire  the  right 
to  fish  in  a  creek  or  navigable  river  to  the  exclusion  of  the 
public :  1st,  by  the  king's  grant ;  and  2d,  by  custom  or  pre- 
scription. "  And  I  think  it  very  clear  that  the  subject  may, 
by  custom  and  usage  or  prescription,  have  the  true  propriety 
and  interest  of  many  of  these  several  maritime  interests. 
....  A  subject  may,  by  prescription,  have  the  interest  of 
fishing  in  the  arm  of  the  sea,  in  a  creek  or  port  of  the  sea, 
or  in  a  certain  precinct  or  extent,  lying  within  the  sea,  and 
these  not  only/ree  fishing,  but  several  fishing."  The  mean- 
ing of  which  terms  will  be  more  fully  exjilained.^ 

5.  But  there  must  be  something  more  than  a  mere  enjoy- 
ment by  the  person  claiming  such  exclusive  right  of  fishing 
in  order  to  acquire  it ;  for  he  has  the  right  originally,  in 
common  with  all  the  citizens,  and  the  exercising  of  such  a 
right  by  one  is  in  no  sense  adverse  to,  or  exclusive  of,  that 
of  another,  whenever  he  shall  see  fit  to  exercise  it.  Thus  in 
the  case  of  Carter  v.  Murcot,  cited  above.  Lord  Mansfield 
says,  when  speaking  of  an  exclusive  right  to  fish  in  a  navi- 
gable river  :  "  If  he  can  show  a  right  by  prescription,  he  may 
then  exercise  an  exclusive  right,  though  the  presumption  is 
against  him,  unless  he  can  prove  such  a  prescriptive  right."  ^ 

This  matter  is  treated  of  by  the  court  of  Connect- 
icut in  *Chalker  v.  Dickinson,  where  the  plaintiff  [*413] 
claimed  an  exclusive  right  to  fish  in  a  part  of  Con- 

1  Hargr.  Law  Tracts,  11. 

2  Woolr.  Waters,  60 ;  2  Dane,  Abr.  690 ;  Mayor  of  Orford  v.  Richardson,  4 
T.  R.  437,  439  ;  Carter  v.  Murcot,  4  Burr,  2164  ;  Day  v.  Day,  4  Md.  262,  270 ; 
Gould  V.  James,  6  Cow.  369,  376. 

8  See  Anon,  1  Mod.  104,  per  Lord  Hale. 


494      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.  ,   [Cn.  Ill, 

necticut  River  in  which  the  tide  ebbed  and  flowed.  ]jy  the 
common  law  no  right  could  be  acquired  by  use,  possession, 
and  occupation,  unless  it  had  been  from  time  immemorial, 
and  this  is  called  a  right  by  prescription.  "  The  general 
rule  is,  that  certain  rights  may  be  acquired  against  individ- 
uals by  fifteen  years'  uninterrupted  possession  and  use,  un- 
answered and  unexplained But  the  case  under  con- 
sideration is  of  a  very  different  description.  The  fishery  in 
Connecticut  River,  below  high-water  mark,  is  common  to  all 
the  citizens.  The  use  and  possession  of  the  plaintiffs  was 
lawful,  and  the  mere  lawful  exercise  of  a  common  right  for 
fifteen  years,  has  never  been  considered  as  conferring  an  ex- 
clusive right.  This  case,  therefore,  does  not  compare  with 
the  cases  where  a  right  is  acquired  by  uninterrupted  use  and 
possession.     Further,  it  does  not  appear  that  the  plaintiffs 

were  the  sole  possessors  and  occupiers  of  this  fishery 

The  public  may  grant  an  exclusive  right  of  fishery  in  a  navi- 
gable river,  and  if  it  may  be  granted,  it  may  be  prescribed 
for.  Such  a  right  shall  never  be  presumed,  but  the  con- 
trary.    It  is,  however,  capable  of  being  proved."  ^ 

So  in  Delaware,  &q.  Railroad  v.  Stump,  the  court  of  Mary- 
land, while  they  recognize  the  right  of  one  citizen  to  an 
exclusive  fishery  in  a  public,  navigable  river,  acquired  by 
long  enjoyment,  insist  that  it  is  not  the  mere  enjoyment, 
but  the  enjoyment  by  such  claimant  must  be  to  the  exclu- 
sion of  all  others,  —  "long  exclusive  possession  and  use,"  to 
give  the  right.^ 

It  is  necessary  that  it  should  appear  that  all  other  persons 
have  been  kept  out,  by  the  claimant  and  his  grantors, 
[*414]  from  *fishing  in  any  manner  in  the  waters  to  which 
he  lays  claim.^ 

6.    But  a  prescription  of  a  right  to  fish  in  the  sea  gener- 

1  Chalkcr  y.  Dickinson,  1  Conu.  382-384;  Collins  u.  Beubury,  5  Ircd.  118, 
124  ;  Gould  u.  James,  6  Cow.  369,  376. 

^  Dclawere,  &c.  R.  R.  v.  Stump,  8  Gill  &  J.  479,  510. 

"  Collins  V.  Benbury,  5  Ired.  118,  124;  2  Sharsvv.  Blackst.  Comm.  40;  3 
Kent,  Comm.  418. 


Sect.  11.]  RIGHTS    OF   FISHERY.  495 

ally,  by  reason  of  owning  a  certain  estate,  would  be  idle,  as 
it  is  a  right  which  belongs  to  all  citizens,  whether  owning 
lands  or  not.^ 

A  right  to  a  several  or  exclusive  fishery  in  a  part  of  the 
sea  or  a  navigable  river  will  be  regarded  as  an  incorporeal 
hereditament,  unless,  as  may  often  be  the  case,  there  may 
be  an  ownership  in  the  soil  over  which  it  is  claimed,  pre- 
sumed in  favor  of  the  claimant  of  the  fishery.'-^ 

7.  And  the  court  of  North  Carolina,  in  citing  the  case  of 
Somerset  v.  Foggwell,  add  :  "  But  the  right  of  several  fish- 
ery not  derived  by  special  grant  from  the  crown,  as  aboye, 
or  by  prescription,  which  supposes  a  grant,  cannot  exist  inde- 
pendently of  the  right  of  soil."  ^ 

The  same  doctrine  is  advanced  by  Blackstone.^  But  Har- 
grave  ^  controverts  the  doctrine,  and  says :  "  Nor  do  we 
understand  why  a  several  piscary  should  not  exist  without 
the  soil  as  well  as  a  several  pasture  " ;  while  the  point  is  left 
unsettled  in  Seymour  v.  Courtenay.'^ 

And  in  one  of  Hargrave's  notes  it  is  said  :  "  The  truth  is, 
that  the  authorities  on  this  subject  are  very  numerous,  and 
seem  contradictory," "  the  question  being  whether  a  several 
fishery  and  the  soil  may  be  in  different  persons. 

Woolrych,  in  the  page  of  his  work  just  cited,  says  :  "  In- 
deed, so  far  from  a  several  fishery  being  necessarily 
incident  *to  the  soil,  it  should  seem  that  in  strictness  *[415] 
it  must  be  separated  therefrom." 

The  doctrine  maintained  by  Ilargrave  and  Coke,  that  it  is 
not  necessary  that  the  owner  of  a  several  fishery  should  have 
a  property  in  the  soil,  is  sustained  in  Melviii  v.  Whiting.^ 

1  Ward  V.  Cresswell,  Willes,  26.i. 
-  Somerset  v.  Foggwell,  5  Barnew.  &  C.  875. 
3  Collins  V.  Benbury,  5  Ired.  118,  126. 
*  2  Blackst.  Comm.  39. 
s  Co.  Lilt.  122,  note,  181. 

^  Seymour  v.  Courtenay,  ^  Burr,  2814.  See  Smith  v.  Kemp,  2  Salk.  637  and 
■  note. 

f  Co.  Litt.  4  b,  note  20.     See  Woolr.  Waters,  89. 

8  Melvin  v.  Whiting,  7  Pick.  80,  81 ;  s.  c,  13  Tick.  184. 


496  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  Ill 

But  the  question  is  again  opened  in  M'Farlin  v.  Essex  Co., 
by  Shaw,  C.  J.,  who  does  not  consider  it  settled  in  the  case 
of  Melvin  v.  Whiting,  as  he  regards  the  claim  set  up  tliere 
by  the  owner  of  the  several  fishery  to  have  been  connected 
with  a  particular  estate  upon  the  bank  of  the  stream.^ 

And  in  the  last-cited  case,  the  point  was  not  taken  in  the 
hearing,  but  the  Chief  Justice  says  :  "  Whether  a  party  can 
prescribe  for  a  several  fishery  in  the  estate  of  another,  with- 
out alleging  some  estate  of  freehold,  is  an  important  question 
which  was  not  discussed  in  the  present  case.  As  a  general 
rule,  a  party  cannot  allege  a  custom  to  claim  an  interest  or 
profit  a  prendre  in  the  estate  of  another  without  a  prescrip- 
tion in  a  que  estate And  yet  we  believe  it  has  some- 
times been  said  that  a  piscary  is  a  freehold  in  itself,  in  which 
there  is  no  occasion  to  show  to  what  freehold  it  is  appendant."  ^ 

This  discussion,  it  will  be  perceived,  has  taken  rather  a 
wide  range,  and  is  somewhat  in  anticipation  of  the  doctrines 
contained  in  some  of  the  authorities  that  follow,  where  the 
distinction  between  the  case  of  a  piscary  and  ordinary  pre- 
scription of  profit  a  prendre^  above  alluded  to,  seems  to  be 
sustained. 

8.  The  right  to  take  fish  within  the  limits  of  one's  land 
bounding  upon  and  including  a  stream  not  navigable,  is 
considered  so  far  a  subject  of  distinct  property  or  ownership, 
that  it  may  be  granted,  and  will  pass  by  a  general 
[*416]  grant  of  *the  land  itself,  unless  expressly  reserved  ; 
or,  as  seems  to  be  settled  by  the  weight  of  authority, 
it  may  be  granted  as  a  separate  and  distinct  property  from 
the  freehold  of  the  land,  or  the  land  may  be  granted  while 
the  grantor  reserves  the  fishery  to  himself.  Whether  the 
grant  or  reservation  shall  have  one  effect  or  another  de- 
pends, of  course,  upon  the  terms  in  which  it  is  expressed. 
Thus  it  has  been  held :  "  If  one  grants  to  another  aquam 
suam,  the  piscary  in  it  shall  pass  by  the  grant,  because  it  is 

1  M'Farlin  v.  Essex  Co.,  10  Cush.  311. 

2  Ibid.  310,  in  which  he  refers  to  Davies,  155. 


Sect.  11.]  EIGHTS   OF   FISHERY.  497 

included  in  the  word  aqua.  And  so  by  the  grant  of  a  pis- 
cary the  soil  sliall  pass,"  though  Comyn  says,  "  By  the  grant 
of  a  piscary  the  soil  or  water  does  not  pass."  ^ 

Or,  as  stated  by  Coke,  in  which  he  is  sustained  by  the 
court  of  New  York,  "  If  a  man  grant  a(/iiam  suam,  the  soil 
shall  not  pass,  but  the  piscary  within  the  water  passcth  there- 
with." 2 

And  though  the  doctrine  has  been  questioned.  Lord  Coke 
maintains  that,  "  If  a  man  be  seized  of  a  river,  and  by  deed 
do  grant  separalem  piscariam  in  the  same,  and  maketli 
livery  of  seizin  secundum  formam  chartce,  the  soile  doth  not 
pass,  nor  tlie  water,  for  the  grantor  may  take  water  there, 
and  if  the  river  become  drie,  he  may  take  the  benefit  of  the 
soile,  for  there  passed  to  the  grantee  but  a  particular  right, 
and  the  livery  being  made  secundum  formam  chartce,  cannot 
enlarge  the  grant."  ^ 

9.  Woolrych,  adopting  the  language  of  another  writer  upon 
aquatic  rights,  Mr.  Shultes  says  :  "  That  property  in  private 
rivers  may  be  subjected  to  every  kiiid  of  restriction  by  con- 
vention and  agreement ;  a  man  may  grant  the  soil 
for  *the  purpose  of  erecting  a  weir  or  mill,  and  re-  [*417] 
serve  the  right  to  fish  or  take  water.  He  might 
yield  his  own  prerogative  of  fishing,  on  the  other  hand,  and 
so  confer  upon  his  grantee  an  exclusive  or  several  fishing, 
without  the  ownership  of  the  soil,  or  he  might  grant  a 
license  to  other  persons  to  fish  in  common  with  himself." 
And  he  himself  concludes  :  "  The  owner  of  a  territorial  fish- 
ery, so  to  speak,  may  either  make  a  grant  and  thereby  ex- 
clude himself,  or   he    may  permit  another   to   enjoy  a   co- 

1  Trockmorton  v.  Tracy,  Plowd.  154;  Case  of  Baune  Fishery,  Davies,  150; 
Com.  Dig.  Grant,  E.  5. 

2  Co.  Litt.  4  b;  Jackson  v.  Haistead,  5  Cow.  219;  Com.  Dig.  Grant,  E.  5; 
Somerset  v.  Fogwell,  5  Barncw.  &  C.  875. 

3  Co.  Litt.  4  b;  Ibid.  122;  Hargr.  note,  20.  See  Somerset  v.  Fogwell,  5 
Barnew.  &  C.  875.  See  Smith  v.  Kemp,  per  Ilolt,  J.,  Salk.  G.'i7  ;  Seymour  v. 
Courtenay,  5  Burr.  2816  ;  Woolr.  Waters,  89;  Melvin  v.  Whiting,  7  Pick.  81  ; 
s.  c,  13  Pick.  184. 

32 


498  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cii.  III. 

extensive  or  limited  right  of  fishing  in  his  own  water,  still 
reserving  his  ownership."  ^ 

In  the  case  of  Cortelyou  v.  Van  Brundt,  Thompson,  J. 
says  :  "  A  right  to  fish  in  any  water  gives  no  power  of  the 
land."  ^  He  refers  to  Ipswich  v.  Browne,  where  the  court 
say,  "  If  one  have  a  piscary  in  any  water,  he  has  no  power 
over  the  land  without  the  assent  of  the  tenants  of  the  free- 
hold.3 

10.  But  it  is  not  the  purpose  of  this  work  to  treat  of  the 
law  of  fisheries  in  all  its  bearings,  and  it  has  been  rather 
with  a  view  of  ascertaining  under  what  circumstances  a 
right  to  take  fish  in  another's  premises  may  be  the  subject 
of  a  grant  or  prescription,  and  so  come  within  the  category 
of  easements,  than  to  discuss  the  effect  of  certain  forms  of 
grants  relating  to  the  same.  To  do  this,  a  brief  reference 
must  be  had  to  the  classification  of  fisheries  and  the  terms 
by  which  they  are  distinguished.  But  here,  again,  it  would 
be  impossible  to  reconcile  the  use  of  these  terms,  as  applied 
by  different  courts  and  writers,  especially  those  of  an  earlier 
day.  It  is  believed  that  it  will  be  sufficiently  accurate  to  say 
that  there  are  three  classes  of  fisheries,  viz.  several,  free, 
and  common.  The  first  is  such  as  a  man  has  in  his  own 
land,  where  the  ownership  of  the  soil  and  freehold  is  separate 
and  distinct  in  himself.  The  second  is  a  right  derived  by 
grant  from  one  having  a  several  fishery  in  connec- 
[*418]  tion  *with  his  estate  in  the  land,  to  be  enjoyed  not 
separately  and  alone,  but  in  conjunction  with  the 
grantor  himself.  It  is  in  some  measure  like  a  fishery  in 
common,  since  it  may  be  to  be  shared  with  others  deriving 
their  titles  thereto,  by  grant  originally  derived  from  the  land- 
owner. The  third  is  the  right  which  all  citizens  have  to 
fish  in  the  sea  and  navigable  waters,  and  is  derived  by  no 
grant  and  belongs  to  no  particular  estate.     It  would,  more- 

1  Woolr.  Waters,  p.  89. 

-  Cortelyou  v.  Van  JJrundt,  2  Johns.  357,  362. 

'^  Ipswich  V.  Browne,  Sav.  14. 


Sect.  11.]  RIGHTS   OF   FISHERY.  499 

over,  seem,  from  what  has  gone  before,  tliat  though  a  several 
fishery  was  originally  based  upon  tlie  ownership  of  land,  it 
may  be  separated  therefrom  by  grant  or  reservation,  and 
forever  after  be  held  and  pass  independent  of  the  ownership 
of  the  land.  So  a  free  fishery,  though  derived  from  the 
ownership  of  the  land,  may  be  enjoyed  independent  of  such 
ownership.  Thus  Lord  Mansfield  says :  "  We  agree  in  the 
position  that,  in  order  to  constitute  a  several  fishery,  it  is 
requisite  that  the  party  claiming  it  should  so  far  have  the 
right  of  fishing,  independent  of  all  others,  as  that  no  person 
shall  have  a  coextensive  right  with  him  in  the  subject 
claimed  ;  for  where  any  person  has  any  such  coextensive 
right,  there  it  is  only  a/ree  fishery."  ^ 

Lord  Coke  says :  "A  man  may  prescribe  to  have  separalem 
piscariam  in  such  a  water,  and  the  owner  of  the  soil  shall 
not  fish  there.  But  if  he  claim  to  have  communiam  pis- 
chari(B  or  liberam  pischariam,  the  owner  of  the  soil  shall  fish 
there."  2 

And  the  court  in  Melvin  v.  Whiting  hold  that  the  views  of 
Lord  Coke  are  law  here,  and  that  a  free  fishery  is  not  a 
several  or  exclusive  one.^ 

It  is  moreover  said,  in  a  subsequent  report  of  the  same 
case,  that  a  free  fishery  and  a  several,  exclusive  fishery  are 
in  some  sense  inconsistent  as  titles  in  a  claim  of  right  to 
exercise  the  act  of  fishing  in  the  soil  of  another, 
although  *there  is  nothing  in  the  way  of  the  same  [*419] 
person  setting  up  and  relying  upon  both  or  either  at 
his  election.  In  that  case  it  was  held  that  one  might  pre- 
scribe for  a  several  or  exclusive  fishery  on  the  soil  of  another, 
situate  upon  the  Merrimac  River,  above  tide-water,  by  show- 
ing an  adverse,  uninterrupted,  and  exclusive  use  and  enjoy- 
ment of  the  right  and  privilege  claimed,  for  more  than 
twenty  years,  and  an  action  on  the  case  was  sustained  against 
the  owner  of  the  soil  for  interrupting  such  fishery.* 

1  Seymour  v.  Coiirtenay,  5  Burr.  2817.  -  Co.  Litt.  122  a. 

3  Melvin  v.  "Whiting,  7  Pick.  80,  81. 

*  Melvin  v.  Whiting,  13  Pick.  184.  But  see  M'Farlin  v.  Essex  Co.,  10  Cush. 
304,  for  comments  upon  the  case. 


500  THE   LAW   OF   EASExMENTS   AND   SERVITUDES.         [Cii.  III. 

The  doctrine  of  Coke,  above  cited,  is  sustained  by  the 
court  in  Pennsylvania,  in  Carson  v.  Blazer.  A  man  may 
prescribe    to   have  separalem  piscarlam   in   such    a   water, 

and   the  owner  of  the  soil    shall   not    fish    there 

The  right  of  piscary  must  be  a  right  appurtenant  to  the 
soil  covered  with  water.  It  must  be  a  part  of  the  fee-sim- 
ple of  that  soil,  and  must  be  supposed  to  have  been  origi- 
nally granted  out  of  it  by  him  who  had  the  fee-simple. 
....  In  order  to  have  an  exclusive  fishery  in  a  river,  all 
that  was  necessary  was  that  the  party  seized  of  the  river 
should  by  his  deed  grant  separalem  piscariam  in  it."  ^ 

Woolrych^  examines  at  length  the  different  senses  in 
which  courts  have  used  the  term  "  free  fishery,"  and  con- 
cludes "  that  to  consider  the  free  fishery  as  the  same  with 
common  of  fishery  will  be  a  reasonable  as  well  as  a  legal 
conclusion."  But  he  admits  that  "  there  is  no  modern  de- 
cision which  can  warrant  us  in  uniting  them."  And  it  will 
be  sufficiently  accurate  for  the  purposes  of  this  work  to 
treat  a  common  fishery  as  one  open  to  all  the  citizens,  as 
in  the  sea,  though  a  free  fishery,  originally  derived  from  a 
private  grant,  may  be  shared  in  by  many  persons,  who,  as 
to  that  particular  fishery,  may  be  said  to  have  a  common 

fishery. 
[*420]       *11.  But  whether  called  several,  free,  or  common, 
it  is  only  of  fisheries  which  may  be  the  subject  of 
private  property  that  easements  can  be  predicated,  and  to 
such  only  it  is  intended  to  refer. 

If  the  right  is  a  part  of  and  incident  to  the  ownership  of 
the  soil,  it  cannot  be  regarded  as  an  easement  in  such  soil. 
But  if  the  riglit  in  an  individual  in  severalty,  or  to  be  shared 
with  others,  be  to  take  fish  within  another's  freehold,  it  is 
an  easement,  and  may  be  acquired  by  grant  from  the  owner 
thereof,  or  by  such  a  user  as  is  evidence  of  such  a  grant 

1  Carson  v.  Blazer,  2  Binn.  47.5,  480. 

'^  Woolr.  Waters,  97,  101  ;  per  Burrowjh  and  Dallas,  JJ.,  in  Bennett  v. 
Costar,  8  Taunt.  183. 


Sect.  11.]  RIGHTS   OF   FISHERY.  501 

under  tlic  name  of  a  prescription,  and  it  may  he  to  the  en- 
tire exclusion  of  the  owner  of  the  soil  from  all  right  to  share 
in  the  fishery.  But  it  must  he  shown  to  have  heen  an  ac- 
tual and  exclusive  possession  of  the  fishery,  adverse  to  the 
right  of  the  riparian  proprietor,  uninterrupted  and  contin- 
ued at  least  twenty  years .^ 

And  where  one  has  a  several  fishery,  he  has  a  property  in 
the  fish,  and  may  maintain  trespass  for  taking  them.^ 

12.  It  will  be  observed  that  the  rights  of  fishery  thus  far 
discussed  have  been  such  as  are  recognized  by  the  common 
law.  But  these  are  in  many  cases  modified  by  local  stat- 
utes. Thus  in  several  of  the  States  many  rivers,  in  respect 
to  their  fisheries,  are  regarded  as  navigable  streams,  and  the 
fisheries  therein  are  common,  though  there  be  no  ebb  or 
flow  of  tide  therein.  Such  is  the  case  with  the  Susquehanna 
in  Pennsylvania,^  and  the  other  large  rivers  in  the  State,* 
and  the  owners  of  the  banks  have  not  an  exclusive  right  to 
fish  in  the  stream  opposite  to  the  same. 

The  same  doctrine  prevails  in  North  Carolina  as  to  rivers 
declared  navigable  by  act  of  the  legislature.     But  in 
those  *  parts  of  the  same  rivers  which  are  above  the   [*421] 
point  of  their  being  actually  navigable,  as  well  as  in 
streams  not  navigable,  the  doctrine  of  the  common  law  as  to 
fisheries  prevails.^ 

So  also  is  the  law  in  South  Carolina  in  respect  to  rivers 
actually  navigable,  though  not  declared  so  by  statute.^         » 

So  in  Massachusetts  and  Maine,  the  legislature  has  the 
power  to  regulate  the  fisheries,  and,  in  numerous  cases,  has 
exerted  the  power  within  streams  which  by  the  common  law 
would  be  private  property." 

1  Melvin  v.  Whiting,  13  Pick.  184;  M'Farlin  v.  Essex  Co.,  10  Cush.  304  ; 
Woolr.  Waters,  10.5. 

-  Collins  r.  Benbury,  .5  Ired.  118;  Smith  v.  Kemp,  2  Salk.  637;  Holford  v. 
Bailey,  13  Q.  B.,  Am.  ed.,  42G  and  n. 

3  Carson  v.  Blazer,  2  Binn.  475.  *  2  Sharsw.  Blackst.  Comm.  40,  note. 

5  Collins  V.  Benbury,  5  Ired.  118;  Ingram  ;;.  Threadgill,  3  Dev.  59. 

^  Cates  V.  Wadlington,  1  M'Cord,  580;  3  Kent  Comm.  418. 

7  Peables  v.  Hannaford,  18  Me.   106  ;  Parker  v.  Cutler  Mill-Dam  Co.,  20  Me. 


502      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ca.  III. 

13.  But  ill  those  States  where  the  common  law  prevail?, 
the  right  of  several  fishery  in  the  lands  of  proprietors  bor- 
dering upon  streams  of  water  in  which  the  tide  does  not  ebb 
or  flow,  is  not  affected  by  the  circumstance  that  the  stream  is 
a  public  one  by  being  of  sufficient  capacity  to  float  vessels, 
boats,  rafts,  and  the  like.  But  the  right  to  fish  upon  one's 
own  land,  or  in  a  several  fishery,  in  such  cases,  must  be 
enjoyed,  if  at  all,  in  subordination  to  the  public  use  of  the 
river  for  passage.  The  public  right  of  passage  is  prior  and 
paramount.^ 


[*422]  ^SECTION    XII. 

OF   SERVITUDES   OF   WATER   BY   THE   CIVIL   LAW,   ETC. 

1.  AfRrmsitive  and  negative  servitudes  of  vrater. 

2.  Servitudes  of  water  by  the  Civil  Law. 

3.  Wliat  servitudes  of  water  real  and  what  personal. 

4.  Rights  of  drain  and  of  drawing  water  affirmative  servitudes. 

5.  Servitudes  did  not  depend  on  being  necessary. 

6.  W^hy  no  servitudes  in  the  Civil  Law  as  to  mills. 

7.  Rivers  and  their  banks  highways  by  the  Civil  Law. 

8.  Law  of  Scotland  as  to  servitudes  of  water. 

9.  Code  Napoleon  as  to  servitudes  of  water. 

10.  Servitudes  under  Code  of  Louisiana. 

11.  Owner  of  servitude  has  the  right  and  duty  to  repair. 

12.  Code  of  Louisiana  as  to  use  of  river  banks. 

13.  Provisions  of  the  Partidas  as  to  use  of  river  banks. 

0  14.  General  agreement  as  to  servitudes  between  common  and  civil  law. 
15.  Peck  V.  Bailey.    Judgment  of  Hawaii. 

1.  Although  these,  as  well  as  other  servitudes  known  to 
the  civil  law,  have  already  been  spoken  of  to  a  greater  or 
less  extent,  it  seemed  to  be  desirable  to  refer  to  them  col- 
lectively in  a  brief  and  summary  manner,  that  the  analogy 

353;  Commonwealth  v.  Cliapin,   5  Pick.  199,  203;  Vinton  w.  Welsh,  9   Tick. 
87  ;  2  Dane,  Abr.  095  ;  Moulton  v.  Libbcy,  37  Me.  472,  494. 

1  Hooker  v.  Cumininj^s,  20  Johns.  90,  99;  Adams  v.  Pease,  2  Conn.  481  ;  3 
Kent,  Comm.  418 ;  Jackson  v.  Keeling,  1  Jones  (Law),  299  ;  Moulton  v.  Libbcy 
37  Me.  472,  493. 


Sect.  12.]      SERVITUDES  OF  WATER  BY  THE  CIVIL  LAW,  ETC.  503 

wliicli  exists  in  this  respect  between  the  civil  law  and  the 
modern  systems  now  in  vise  may  be  more  readily  perceived. 
And  among  these  may  be  mentioned  the  Scotch  and  the 
French  systems,  as  well  as  the  laws  of  Louisiana,  and  so 
much  of  the  Spanish  Partidas  as  still  prevail  in  Louisiana, 
for  which  the  English  reader  is  indebted  to  Messieurs  Lislet 
and  Carleton,  whose  translation  of  these  was  published  in 
1820. 

The  number  and  variety  of  servitudes  known  to  the  civil 
law  seem  to  have  been  almost  unlimited,  and  in  numerous 
cases  where  one  estate  had  a  servitude  in  or  upon  another, 
the  latter  might  have  had  a  counter  servitude  in  or  upon  the 
former.  As,  for  instance,  the  servitude  of  slillicidium  or 
Jiumen,  heretofore  described,  consisted  in  the  right  that  the 
owner  of  a  house  had  to  discharge  the  water  that  fell  in 
rain  upon  its  roof  upon  the  land  of  an  adjacent 
*proprietor.  But  the  land-owner  might  have  ac-  [*423] 
quired,  as  an  easement  in  favor  of  his  land,  and  the 
owner  of  the  house  should  not  thus  discharge  the  water  from 
his  roof,  jus  stillicidii  vel  fluminis  non  recipiendi.  Or  he 
might  gain  as  an  easement  the  right  to  insist  that  the  water 
from  the  roof  should  be  discharged  upon  his  land,  or  into 
his  cistern,  jus  stillicidii  vel  Jluminis  non  avertendi} 

2.  Among  the  servitudes  relating  to  the  use  or  manage- 
ment of  water  known  to  the  civil  law  was  that  of  cloaca 
mittendcB,  which  was  urban  in  its  character,  and  consisted 
in  the  right  of  maintaining  and  using  a  sewer  through 
the  house  or  over  the  ground  of  an  adjacent  owner.  A 
servitude  answering  to  this  among  those  known  as  rural, 
was  that  of  aqucs  ducendcc,  or  right  of  leading  or  conducting 
water  through  another's  land  by  a  pipe  or  rivulet  for  the  use 
of  the  premises  of  the  owner  of  such  servitude.  It  might 
apply  whether  the  stream  of  water  was  conducted  above  or 
below  the  surface  of  the  earth.     It  might,  moreover,  extend 

1  Ante,  sect.  8 ;  o  Toullier,  Droit  Civil  Fran^ais,  397  ;  2  Fournel,  Traite  du 
Voisinage,  114  ;  D.  8,  2,  2 ;  Inst.  2,  3,  1. 


504       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

through  the  wliole  year,  or  be  limited  to  certain  seasons. 
Nor  might  the  owner  of  the  servitude  change  the  place  of 
direction  of  the  course  of  the  water  when  once  fixed.  Where 
the  supply  of  water  was  sufficient,  others  might  share  in  it 
with  the  first  owner  of  the  servitude.  But  a  second  grant 
could  not  be  made  of  a  right  to  draw  water  which  should 
derogate  from  the  right  first  granted.  Under  the  servitude 
aqua  hauriendce,  one  might  draw  water  for  his  own  use  from 
a  spring  or  well  or  brook,  in  another's  land,  which  implied  a 
right  of  way  to  and  from  the  place  of  supply  as  a  means  of 
access  to  the  same.  By  another  servitude,  the  owner  of  one 
estate  might  drive  his  cattle  to  water,  over  the  neighboring 
estate,  to  a  spring  or  other  source  of  supply  within  the  same. 

There  was  another  servitude  aqucB  ducenda,  whereby 
[*424]   one  might  lead  *or  conduct  off  from  his  land  the 

water  thereon  through  the  estate  of  another. ^ 

3,  If  the  person  having  a  right  to  draw  water  within 
another's  premises  had  no  land  in  the  neighborhood  in 
connection  with  the  ownership  whereof  he  exercised  such 
right,  it  was  considered  a  personal  one,  which  died  with 
the  person.  But  all  these  servitudes  took  the  character 
of  real  services,  where  they  were  possessed  in  virtue  of  the 
occupancy  of  some  other  estate  for  the  use  and  advantage 
whereof  the  same  were  enjoyed.  The  limit  and  extent  of 
these  several  easements  were  defined  by  the  grant  or  pre- 
scription under  which  they  were  claimed,  and  the  owner 
thereof  might  not  exceed  this  limit.  If,  for  instance,  one 
having  a  right  to  water  a  certain  number  of  cattle  under- 
took to  supply  a  larger  number,  the  owner  of  the  servient 
estate  might  hinder  the  owner  of  the  servitude  from  using  it 
beyond  the  prescribed  number .^ 

4.  A  servitude  of  drawing  water  to,  or  of  drain  or  gutter 

1  Ayliffe,  Pandects,  307,  308  ;  Kauff.  Mackcldcy,  §§  309,  312,  31.5  ;  1  Domat, 
Lib.  1,  Tit.  12,  ^  1,  Art.  7  ;  ^  2,  Art.  1,  2,  3  ;  §  3,  Art.  1,  3,  4,  5,  6  ;  D.  8,  1,  7  ; 
Ibid.  43,  20,  1,  3;  Wood's  Inst.  Civ.  Law,  90-93;  Vinnius,  Lib.  2,  Tit.  3, 
§  i  ;  Ibid.  Tit.  3,  §^  4,  .5.     Sec  Lalaure  des  Servitudes,  30. 

2  Ayliffe,  Pandects,  308. 


Sect.  12.]      SERVITUDES  OF  WATER  BY  THE  CIVIL  LAW,  ETC.  505 

from,  one's  premises,  through  those  of  anotlier,  was  an  alTirm- 
ative  one.i 

5.  These  servitudes  did  not  depend  for  their  existence 
upon  any  supposed  necessity  of  enjoyment,  and  when  once 
acquired  they  continued,  though  the  owner  of  the  dominant 
estate  might,  for  instance,  have  water  enough  upon  liis  own 
premises  without  drawing  any  from  those  of  his  neighbor.'-^ 

6.  One  might  naturally  be  surprised  to  see  so  little,  or 
rather  nothing,  said  of  the  use  of  water  for  mills  in  the  Ro- 
man law.     And  the  same  may  be  said  of  hydraulic 
*works  generally,  but  this  is  explained  by  the  fact   [*425] 
stated  by  M.  Fournel,  that  water-mills  were  not  in 

use  among  the  Romans  until  after  Justinian,  their  mills  be- 
fore that  time  having  been  moved  by  animal  power.^ 

7.  By  the  civil  law,  not  only  were  navigable  rivers  high- 
ways, but  the  traveller  upon  the  same  might  use  the  banks 
thereof  as  a  tow-path,  provided  such  use  did  not  interfere 
with  trees  growing  thereon  belonging  to  the  land-owner,  or 
other  obstacles  lawfully  upon  the  bank.* 

8.  By  the  law  of  Scotland,  on  some  of  the  foregoing  sub- 
jects, as  stated  by  Erskine,  in  his  Institutes  of  the  Law  of 
Scotland,  the  servitude  of  aqueduct  is  the  right  that  one  has 
of  carrying  water  in  conduits  or  canals  along  the  surface  of 
the  servient  tenement,  for  the  use  of  one's  own  property,  and 
such  servitude  may  be  acquired  by  immemorial  possession. 
Much  like  to  this  is  the  servitude  of  a  dam-head,  by  which 
one  acquires  a  right  of  gathering  water  on  his  neighbor's 
grounds,  and  of  building  banks  or  dikes  for  containing  that 
water.  These  servitudes  are  generally  constituted  for  the 
use  of  water-mills  or  engines,  and  the  owner  of  the  dominant 
tenement,  as  he  has  the  benefit  of  the  servitude,  is  obliged  to 

1  Ibid.  310 ;  Wood,  Inst.  Civ.  Law,  92. 

2  1  Domat.  Lib.  1,  Tit.  12,  §  1,  Art.  17. 

^  "  Les  lois  romains  ne  contienent  ancune  disposition  sur  ies  moulines  a  eau  et 
a  vent,  parceque  cette  construction  etoit  inconnue  aux  Romains  a  I'epoque  de 
la  redaction  du  corps  de  droit  civil."     2  Fouruel,  Traite  du  Voisiuage,  222. 

*  2  Domat,  Lib.  1,  Tit.  8,  §  2,  Art.  9. 


506  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.         [Cn.  III. 

preserve  the  aqueducts  and  dam-heads  in  such  condition 
that  the  adjacent  grounds  may  suffer  no  prejudice  by  the 
breaking  out  of  the  water.  Aquahaustus  is  a  right  of  the 
land-holder  to  water  his  cattle  at  the  river,  brook,  well, 
or  pond  that  runs  through  or  stands  upon  his  neighbor's 
grounds. 1 

9.  By  the  Code  Napoleon,  low  lands  are  subjected  to  those 
more  elevated,  to  receive  the  waters  naturally  running  from 
them  without  the  hand  of  man  contributing  thereto.     The 

owner  of  the  low  land  cannot  erect  a  bank  to  pre- 
[*426]   vent  this.      *The  owner  of  the  high  land  can  do 

nothing  to  aggravate  the  servitude  of  the  low  land. 
He  who  has  a  spring  on  his  land  may  use  it  according  to  his 
pleasure,  saving  the  right  which  the  owner  of  the  low  land 
may  have  acquired  by  title  or  by  prescription.  He  whose 
property  abuts  upon  a  running  water  may  cut  a  way  for  it 
for  the  irrigation  of  his  property.  He  through  wlwse  estate 
such  water  runs  may  even  make  use  of  it  for  the  space  it  so 
runs,  but  at  the  charge  of  restoring  it,  where  it  leaves  the 
property,  to  its  ordinary  course.^ 

10.  The  Civil  Code  of  Louisiana  recognizes  the  servitudes 
of  drawing  water  from  the  well  of  another,  of  conducting 
water,  or  aqueduct,  and  of  watering  cattle,  substantially  like 
those  of  the  civil  law,  and  includes  those  of  aqueduct  and 
drain  as  among  contUiuous^  and  that  of  drawing  water  among 
the  discontinuous,  servitudes. ^ 

11.  And  the  principle  of  the  common  law  is  here  declared 
by  the  terms  of  the  code,  that  he  to  whom  a  servitude  is  due 
has  a  right  to  make  all  the  works  necessary  to  use  and  pre- 
serve the  same.  Su.ch  works  are  at  his  expense,  and  not  at 
the  expense  of  the  owner  of  the  estate  which  owes  the  servi- 
tude, unless  the  title  by  which  it  is  established  shows  the 

1  Fol.  cd.  B.  2,  i)  1.3,  p.  3.58. 

'^  Cod  Nap.,  Barrett's  ed.,  Arts.  640,  641,  64.3,  644  ;   1  Le  Tagc  Dcsgodets,  211. 
3  La  Civ.  Cod.,  Arts.  716,  717,  719,  720,  721,  723;  Poldcn  v.  Bastard,  4  B.  & 
Smith,  258,  264. 


Sect.  12.]     SERVITUDES  OF  WATER  BY  THE  CIVIL  LAW,  ETC.  507 

contrary.     And  lie  may  enter  iif^on  the  servient  estate  so  far 
as  it  is  necessary  to  accomplish  this  purpose.^ 

12.  In  respect  to  the  use  of  navigable  rivers  and  their 
banks,  they  are  declared  public  so  far,  that  every  one  may 
bring  his  vessel  to  land  there,  may  make  the  same  fast  to 
trees  planted  there,  to  unload  his  vessels,  to  deposit  his  goods, 
or  dry  his  nets,  and  the  like.  At  the  same  time,  the  prop- 
erty in  the  soil  of  the  banks  is  declared  to  be  in  such  as  pos- 
sess the  adjacent  lands.  A  bank  of  a  river  is  de- 
*fined  to  be  "  that  which  contains  the  water  in  its  [*427] 
utmost  height."  2 

13.  The  banks  of  public  rivers  are  declared  public  by  the 
civil  law.3  And  by  the  provisions  of  the  Partidas,  recognized 
within  the  former  Territory  of  Louisiana,  this  right  is  de- 
clared to  be  that  "  every  man  may  make  use  of  them  to 
fasten  his  vessel  to  trees  that  grow  there,  or  to  refit  his 
vessel,  or  to  put  his  sails  or  merchandise  there.  So  fisher- 
men may  put  and  expose  their  fish  for  sale  there,  and  dry 
their  nets,  or  make  use  of  the  banks  for  all  other  like  pur- 
poses which  appertain  to  the  art  or  trade  by  which  they 
live."  *  In  this  respect  the  rule  of  the  common  law  differs 
from  the  civil  law,  as  has  been  before  shown  ;  ^  and  the  courts 
of  Missouri  have  been  disposed  to  limit  the  language  of  the 
Partidas  to  cases  of  reasonable  necessity.^ 

To  pursue  the  subject  of  servitudes  of  water  into  detail, 
either  under  the  civil  or  the  French  laws,  would  be  opening 
many  topics  which  either  have  not  yet  been  adjudicated  at 
common  law,  or  upon  which  the  rule  of  the  common  law 
would  be  found  variant  from  that  of  one  or  both  these  codes, 
and  would  lead  to  a  wider  discussion  than  the  plan  or  the 
utility  of  this  work  would  warrant.  But  whoever  may  wish 
to  pursue  the  inquiry  will  readily  find  the  works  cited  below, 

1  La.  Civ.  Code,  Arts.  768,  769,  770. 

-  Ibid.,  Art.  446  ;  D.  43,12,  3,  1. 

3  D.  43,  12,  3. 

*  Partid.  3,  Tit.  28,  Law  6.  °  Ante,  sect.  9,  pi.  18. 

6  Ante,  sect.  9,  pi.  13 ;  O'Fallon  v.  Daggett,  4  Mo.  343. 


508       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  III. 

which  are  among  the  treatises  which  will  throw  light  upon 
.the  subject  of  these  servitudes.^ 

14.  The  following  extracts,  however,  from  a  writer  of 
acknowledged  authority,  will  serve  to  show,  after  what  has 
been  said  of  easements  at  common  law,  how  intimate  the 

relations  are  between  that  and  the  civil  law  in  their 
[*428]   *bearing  upon  this  subject.    "  Servitus,  a  service,  is 

a  right  by  which  one  thing  is  subject  to  another 

thing  or  person,  contrary  to  common  right Here  one  is 

the  ruling  estate,  the  other  subject  to  the  rule,  either  to 
suffer  something  from  the  other,  or  not  to  do  a  thing  without 

the  leave  of  the  owner  of  the  ruling  estate A  man's 

estate  cannot  owe  service  to  himself."  ^ 

15.  A  very  recent  case  has  been  decided  by  the  Supreme 
Court  of  the  Hawaiian  Islands,  in  Equity,  by  the  Hon.  Ch.  J. 
Allen,  Chancellor,  which  is  interesting,  not  only  from  the 
importance  of  the  questions  it  involved,  and  the  great  ability 
evinced  by  the  Chancellor  in  their  discussion,  but  the  facil- 
ity with  which  the  principles  of  the  common  law  in  which 
the  Chancellor,  born  and  educated  in  Massachusetts,  was 
trained,  may  be  adapted  and  applied  to  a  country  whose 
physical  condition  differs  essentially  from  that  in  which  the 
common  law  originated.  In  these  islands,  the  agricultural 
productions  on  which  the  people  chiefly  subsist,  can  only  be 
raised  by  the  artificial  application  of  water,  by  way  of  irriga- 
tion. This,  as  it  seems,  is  not  done  by  mere  sluices  cut  in 
the  natural  banks  of  a  stream,  by  which  the  water  flushes  over 
on  to  the  adjacent  lands,  but  by  lateral  artificial  trenches  by 
which  the  water  is  taken  from  its  natural  bed  and  diffused 
over  large  tracts  on  which  it  is  absorbed,  so  that  the  lower 
proprietor  is  materially  affected  by  the  manner  and  to  the 
extent  in  which  the  upper  owner  makes  use  of  the  water. 
As  this  use  is  not  what  would  ordinarily-  be  regarded  as  a 

1  .5  Duninton,  Cours  du  Droit  Franrms,  144  -  231  ;  Partlessus,  Traite  des 
Servitudes,  96-  174  ;  Merlin,  Repertoire  de  Jurisprudence,  Tit.  Cours  d'Euu. 

2  Wood's  Inst.  Civ.  Law,  90. 


Sect.  12.]      SERVITUDES  OF  WATER  BY  THE  CIVIL  LAW,  ETC.  509 

natural  incident  to  the  land  bordering  upon  a  watercourse, 
it  becomes  a  matter  of  easement  or  servitude  if  continued 
long  eaiougli,  and  under  proper  circumstances  to  create  a 
prescriptive  right.  Such,  in  brief",  was  tlie  case  referred  to, 
and  the  questions  involved  were :  1st.  If  the  upper  owner 
had  diverted  more  water  than  he  had  a  prescriptive  right  to 
do,  to  the  injury  of  the  lower  owner's  mill  and  crop  which 
he  was  cultivating  ?  2d.  Whether,  as  he  had  acquired  a 
prescriptive  right  to  divert  the  water  for  the  ])roduction  of 
a  certain  crop  (kalo)  upon  certain  lands,  he  had  a  right  to 
use  it  upon  other  lands  in  growing  a  crop  of  cane  ?  3d. 
Whether,  as  in  the  use  of  the  water  upon  the  kalo  land,  a 
portion  of  it  reached  the  plaintiff's  land,  whereby  it  was 
benefited,  and  this  had  been  continued  from  time  immemo- 
rial, the  defendant  had  a  right  to  cease  using  it  upon  his 
kalo  land  and  to  use  it  on  his  cane  land,  and  thereby  de- 
prive the  plaintiff  of  the  enjoyment  of  the  water  from  the 
kalo  land  ?  And  4th.  What  rule  should  be  applied  as  to 
the  extent  of  enjoyment  of  the  parties,  if  at  any  time  there 
should  be  deficiency  of  water  by  reason  of  an  extraordinary 
drought  ?  Upon  these  points  the  Chancellor  held  that  the 
rights  of  the  parties  as  to  tlie  extent  to  which  eitlier  could 
apply  the  waters  of  the  streams  running  tlirough  their  lands, 
must  be  measured  by  the  prescriptive  rights  of  user  acquired 
by  each ;  that  the  riglit  attached  to  the  estates  owned  by 
them,  and  had  reference  to  the  quantity  to  be  used  and  not 
the  particular  mode  in  which  it  should  be  applied,  and  that 
it  was  indifferent  whether  it  was  used  in  growing  kalo  or 
cane ;  that  inasmuch  as  the  use  of  the  water  upon  his  kalo 
land  was  artificial  and  for  his  own  benefit,  the  owner  was 
not  bound  to  continue  it,  although  its  discontinuance  worked 
an  injury  to  the  adjacent  owner ;  and  that  tlie  use  of  the 
water  of  the  stream  was  so  far  the  common  property  of  both, 
that  if,  from  extraordinary  causes,  there  was  a  deficit  in  tlie 
quantity  necessary  to  supply  the  wants  of  both,  the  loss 
should  be  borne  pro  rata,  by  the  estates  of  the  parties  in 


510  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cir.  III. 

interest.  All  these  points  are  fully  considered  in  the  light 
of  authorities  drawn  from  English  and  American  decisions 
and  elementary  treatises.  And  the  case  itself  and  its  de- 
cision furnish  palpable  and  gratifying  evidence  of  the  change 
which  has  come  over  the  social  and  political  condition  of  a 
people  who,  within  the  memory  of  living  witnesses,  have 
emerged  from  barbarism  and  idolatry,  and  are  now  enjoying 
the  gladsome  light  of  jurisprudence  in  its  dispensation  by  a 
learned  and  able  judiciary  and  an  educated  bar.i 

1  Peck  V.  Bailey,  Pacific  Com.  Advertis.,  Feb.  9,  1867. 


=^CHAPTER    IV.  [*429] 

OF    EASEMENTS    AND    SERVITUDES    OTHER    THAN    OF 
WAY    AND    WATER. 

Sect.  1.  Easement  of  Lateral  Support  of  Land. 

Sect.  2.  Of  Easement  of  Support  of  Houses. 

Sect.  3.  Easement  of  Party  Walls. 

Sect.  4.  Easement  of  Support  of  subjacent  Land. 

Sect.  5.  Easement  of  Support  of  Parts  of  the  same  House. 

Sect.  6.  Easements  and  Servitudes  of  Light  and  Air,  &c. 

Sect.  7.  Miscellaneous  Easements  and  Servitudes. 


SECTION    I. 

EASEMENT  OF  LATERAL  SUPPORT  OF  LAND. 

1.  How  far  lateral  support  a  right  incident  to  property. 

2.  Rule  of  Civil  Law,  &c.  as  to  rights  of  adjacent  lands. 

3.  How  near  one  may  dig  to  the  line  of  another's  land. 

4.  Thurston  v.  Hancock.     Removing  support  of  adjacent  house. 

5.  Farrand  v.  Itlarshall.     Digging  clay  and  causing  land  to  fall. 

6.  Rule.     One  may  not  dig  so  as  to  cause  adjacent  land  to  fall. 

7.  Lasala  v.  Holbrook.     Impairing  support  of  a  house. 

8.  One  may  not  carelessly  injure  the  support  of  another's  hoxxse. 

9.  One  may  not  dig  in  another's  land  to  the  injury  of  a  third  party. 

10.  Radchffe  v.  Mayor,  &c.     How  far  one  may  dig  his  own  soil. 

11.  Effect  of  having  a  house  in  preventing  another's  digging. 

12.  No  prescriptive  right  as  to  an  insufficient  foundation. 

13.  How  what  is  carelessness  in  digging  is  tested. 

14.  Support  for  houses  gained  by  prescription  and  implied  gi-ant. 

15.  Foley  v.  Wyeth.     Care  to  be  used  in  digging  as  to  houses. 

16.  Right  to  dig  limited  by  its  not  injuring  the  natural  soil. 

17.  IS.  How  far  knowledge  of  facts  afiects  the  degree  of  care  to  be  used. 

1.   Among  the  rights  which  adjacent  proprietors  of  lands 
may  have  to  enjoy  the  benefit  of  their  contiguity,  is  that  of 


512  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cii.  IV. 

[*430]  *having  one  parcel  laterally  supported  l)y  the  other. 
It  is  a  right  incident  to  the  ownership  of  the  respective 
lands,  rather  than  an  easement  which  one  has  in  the  other. 
It  does  not  result  from  the  idea  of  an  adverse  enjoyment,  nor 
is  it  derived  from  any  grant,  as  something  superadded  to  the* 
dominion  which  the  owner  of  the  fee  has  as  such,  over  the  soil 
of  the  particular  close  that  is  supposed  to  be  Ijenefited  by  it. 
So  far  as  it  partakes  of  the  character  of  an  easement  it  is  that 
of  a  natural  easement,  like  the  right  of  a  riparian  proprietor 
to  the  flow  of  a  natural  stream  along  its  accustomed  water- 
course.^ A  writer  in  the  London  Law  Magazine  and  Review, 
in  treating  of  this  subject,  thus  states  the  law  :  "  But  the 
right  being  a  right  to  support  from  land  in  its  natural  state 
to  land  in  its  natural  state,  on  the  one  hand,  it  includes  only 
the  right  to  such  support  as  is  furnished  by  the  permanent 
conditions  of  land,  not  by  its  accidental  circumstances,  and, 
on  the  other  hand,  if  the  support  required  is  increased,  either 
by  increasing  the  weight  of  the  supported  land,  or  by  di- 
minishing its  self-supporting  power,  no  right  exists  to  have 
this  additional  support  supplied  by  the  neighboring  land,  and 
no  subsidence  resulting  from  this  cause  gives  a  right  of 
action."  ^  But  where  the  owner  of  one  parcel  undertakes  to 
claim,  as  a  right,  this  lateral  support  of  an  adjacent  parcel 
to  sustain  an  additional  burden  thereon,  as  a  dwelling-house, 
an  artificial  embankment,  and  the  like,  it  becomes  a  servi- 
tude so  far  as  the  adjacent  parcel  is  concerned,  and  an 
easement  in  favor  of  the  parcel  sharing  the  benefit  of  such 
support.^ 

1  M'Guirc  V.  Grant,  1  Dutch.  356,  368;  Humphries  v.  Brogden,  12  Q.  B. 
739;  Lasala  v.  Ilolbrook,  4  Paige,  169;  Farrand  v.  Marshall  19  Barb.  380; 
Hunt  I'.  Peake,  Johns.  Ch.  (Eng.)  705  ;  No.  East.  E.  W.  Co.  v.  Elliot,  1  Johns. 
&  H.  145;  Foley  v.  Wyeth,  2  Allen,  131  ;  Rowbotham  v.  Wilson,  8  Ellis  & 
B.  123,  152  ;  Solomon  v.  Vintners'  Co.,  4  Hurlst.  &  N.  585  ;  Bonomi  v.  Back- 
house, Ellis,  B.  &  E.  622,  642,  644 ;  Caledonian  E.  W.  Co.  v.  Sprot,  2  Macq. 
H.  of  L.  Cas.  449  ;  Napier  v.  Bulwinkle,  5  Rich.  311,  323. 

^  20  Law  Mag.  &  R.  82. 

=*  Humphries  v.  Brogden,  12  Q.  B.  739,  748,  750;  Thurston  v.  Hancock,  12 
Mass.  226;  Bonomi  v.  Baekliousc,  Ellis,   B.  &  E.   622,  646;  Hunt   v.  Peake, 


Sect.  1.]    EASEMENT  OF  LATERAL  SUrPORT  OF  LAND.      513 

From  the  circumstance  that  there  may  be  in  mining  re- 
gions an  upper  and  a  lower  freehold,  questions  of  the  right 
of  support  of  the  superior  by  an  inferior  stratum  of  earth  or 
mineral  often  arise,  and,  as  a  general  proposition,  the  same 
.  distinction  in  this  respect  prevails  between  the  superior  tene- 
ment in  its  jiatural  condition,  and  when  burdened  by  build- 
ings and  other  structures,  as  there  is  in  the  case  of  lateral 
sup23ort.^ 

*2.  And  although  it  is  proposed  to  confine  these  [*431] 
inquiries,  principally  to  the  common  law,  it  seems 
proper  to  refer  briefly  to  the  provisions  of  the  civil  law  upon 
the  subject,  and  the  systems  which  have  been  borrowed  from 
it.  The  rule  as  laid  down  in  the  Digest  ^  required,  "  that, 
if  a  man  dig  a  sepulchre  or  a  ditch,  he  shall  have  (between 
it  and  his  neighbor's  land)  a  space  equal  to  its  depth  ;  if  he 
dig  a  well,  he  shall  have  the  space  of  a  fathom."  ^ 

By  a  law  of  Solon,  no  one  could  dig  a  ditch  upon  his  own 
land  without  allowing  as  much  space  between  the  ditch  and 
his  neighbor's  land  as  the  same  was  deep.  No  wall  could  be 
placed  nearer  to  a  neighbor's  land  than  the  distance  of  one 
foot.  A  house  must  be  two  feet  distant.  Trees  might  not 
be  planted  nearer  the  outer  line  of  one's  land  than  nine  feet, 
and  olives  ten.  The  laws  of  the  XII.  Tables  in  Rome  were 
borrowed  from  those  of  Solon. ^ 

The  subject  is,  in  a  measure,  regulated  by  the  Code  Napo- 
leon and  that  of  Louisiana,^  and  the  principles  applicable  in 
cases  of  making  excavations,  or  erecting  structures  upon 
lands  adjoining  those  of  other  proprietors,  are  further  ex- 
plained by  Pardessus.^ 

3.    The  test  of  this  right  of  lateral  support  is  the  limit 

Johns.  Ch.  (Eng.)  705,  712  ;  Partridge  i'.  Scott,  3  Mees.  &  W.  220  ;  Rogers  v. 
Taylor,  2  Hurlst.  &  N.  828 ;  Hide  v.  Tliornborough,  2  Carr.  &  K.  250. 

1  Post,  sect.  4,  pi.  3  -  5.  2  £>_  jq^  1^  13. 

3  9  C.  B.  412. 

*  Barrett's  Introd.  Code  Nap.  cxi,  cxxxv. 

5  La.  Civ.  Code,  Arts.  674,  688-691. 

6  Traite  des  Servitudes,  §§  199-201. 

33 


514  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.         [Ch.  IV, 

which  one  is  bound  to  observe  in  excavating  his  own  soil  in 
the  direction  of  his  neighbor's  close,  for,  aside  from  the  in- 
jury that  may  be  done  by  removing  thereby  the  support 
which  his  neighbor  may  lawfully  claim  to  derive  from  his 
land,  there  is  no  limit  as  to  the  extent  to  which  such  exca- 
vation may  be  carried.  The  rule  to  be  observed,  where  the 
rights  of  the  parties  relate  to  the  soil  in  its  natural  state,  is 
generally  stated  to  be,  that  neither  shall  excavate  his  own 
soil  so  as  to  cause  that  of  his  neighbor  to  be  loosened  and 
fall  into  such  excavation.  This  rule,  as  stated  by  Rolle  in 
his  Abridgment,  is  often  cited  as  a  sound  one,  and  embraces 
the  distinction  which  the  law  makes  between  land  in  a  natu- 
ral state  and  the  same  land  burdened  with  buildings  or  other 
structures,  "  If  A  be  seized  in  fee  of  land  next  adjoining 
the  land  of  B,  and  A  erect  a  new  house  on  the  confines  of 
his  land,  next  adjoining  the  land  of  B,  and  if  B  afterwards 
digs  his  land  so  near  the  foundation  of  A's  house,  but  no 

part  of  the  land  of  A,  that  thereby  the  foun- 
[*432]   *dation  of  the  house  and  the  house  itself  fall  into 

the  pit,  yet  no  action  lies  by  A  against  B,  because 
it  was  A's  own  fault  that  he  built  his  house  so  near  to 
B's  land,  for  he  by  his  act  cannot  hinder  B  from  making  the 

best  use  of  his  own  land  that  he  can But  semble, 

that  a  man  who  has  land  next  adjoining  my  land  cannot  dig 
his  land  so  near  mine  that  thereby  my  land  shall  go  into  his 
pit ;  and  therefore  if  the  action  had  been  brought  for  that, 
.   it  would  lie."  ^ 

If  any  diversity  of  opinion  is  found  among  the  judges  in 
the  modern  cases,  it  is  believed,  it  is  only  as  to  how  far  one 
is  bound  to  exercise  more  care  in  digging  in  his  own  land, 
in  respect  to  its  injury  upon  that  of  his  neighbor  who  has 
recently  erected  a  house  thereon,  than  if  there  were  no  such 
structure  there. 

4,    The  case  of  Thurston  v.  Hancock  is  a  leading  one 

1  Wilde  V.  Minsterley,  2  llolle,  Abr.,  Trespass,  I.  pi.  1  ;  Beard  v.  IMurpliy,  37 
Verm.  101. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      515 

upon  this  subject,  and  often  referred  to,  wherein  tlic  facts 
were  as  follow.  The  plaintiff  in  1802  purchased  a  lot  of 
land  upon  a  hill,  and  in  1804  built  a  house  thereon,  within 
two  feet  of  the  line  of  his  land.  In  1811  the  defendant 
purchased  the  adjoining  lot,  and  began  to  dig  down  the  hill, 
and  had  dug  up  to  within  five  or  six  feet  of  the  plaintiff's 
land,  when  the  earth  gave  way,  and  exposed  the  foundations 
of  the  plaintiff's  house,  and  he  had  to  take  it  down.  For 
this  he  brought  his  action,  the  digging  having  been  done 
with  full  knowledge,  on  the  part  of  the  defendant,  that  he 
was  thereby  endangering  the  property  of  the  plaintiff.  But 
the  court  held  that  he  was  without  remedy  for  the  injury  to 
the  house.  A  man,  in  digging  upon  his  own  land,  is  to  have 
regard  to  the  position  of  his  neighbor's  land,  and  the  proba- 
ble consequences  to  his  neighbor.  If  he  digs  too  near  his 
line,  and  if  he  disturbs  the  natural  state  of  the  soil,  he  shall 
answer  in  damages.  But  he  is  answerable  only  for  the 
natural  and  necessary  consequences  of  his  act,  and 
not  *for  the  value  of  a  house  put  upon  or  near  the  [*433] 
line  by  his  neighbor.  For  in  so  placing  the  house 
the  neighbor  was  in  fault,  and  ought  to  have  taken  better  care 

of  his  interest He  (the  plaintiff)  built  at  his  peril,  for 

it  was  not  possible  for  him,  merely  by  building  upon  his  own 
ground,  to  deprive  the  other  party  of  such  use  of  his  as  he 
should  deem  most  advantageous.  There  was  no  right  ac- 
quired by  his  ten  years'  occupation  to  keep  his  neighbor  at  a 

convenient  distance  from  him It  is,  in  fact,  damnum 

absque  injuria For  the  loss  of  or  injury  to  the  soil 

merely,  his  action  may  be  maintained.  The  defendants 
should  have  anticipated  the  consequences  of  digging  so  near 
the  line,  and  they  are  answerable  for  the  direct  consequential 
damage  to  the  plaintiff,  although  not  for  the  adventitious 
damage  arising  from  his  putting  his  house  in  a  dangerous 
position."  1 

Although,  in  Farrand  v.  Marshall,  Harris,  J.  expressed  a 

1  Thurston  v.  Hancock,  12  Mass.  226. 


516      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  IV. 

decided  impression  that,  upon  the  facts  of  the  case  of  Thurs- 
ton V.  Hancock,  the  same  was  incorrectly  decided,  yet  he 
sustains  the  general  view  of  the  law  as  there  stated,  that 
while,  as  an  incident  to  property,  every  owner  of  land  has  a 
right  to  a  lateral  support  thereof  by  the  adjacent  soil  of 
another,  he  has  no  right  to  claim  such  support  for  an  in- 
creased burden  upon  his  land.^  « 

5.  The  case  of  Farrand  v.  Marshall  was  one  where  one 
owner,  for  the  purpose  of  procuring  clay  for  the  manufacture 
of  brick,  dug  for  the  same  in  his  own  soil  so  deep  and  so 
near  to  the  line  of  the  adjacent  owner  as  to  cause  the  soil  of 
the  latter  to  fall  into  the  excavation.  It  was  again  argued 
and  decided  upon  an  appeal,  in  which  Wright,  J.  gave  the 
opinion  confirming  that  given  by  Harris,  J.,  above  stated. 
He   admitted   that  it   might   be   too   late   to   question   the 

soundness  of  Thurston  v.  Hancock,  and  repeated 
[*434]    the  *position  in  several  forms,  that  one  may  dig  on 

his  own  land,  but  not  so  near  that  of  his  neighbor 
as  to  cause  the  land  of  the  latter  to  fall  into  his  pit.^ 

6.  So  far  as  the  rights  of  adjacent  owners  to  the  support 
of  each  other's  soil  in  its  natural  state  is  concerned,  the  rule 
above  stated  has  been  recognized  as  law  in  the  following 
cases,  in  some  of  which  the  doctrine  was  applied  to  cases  of 
excavations  made  by  companies  in  constructing  railroads  and 
other  public  works. ^ 

7.  The  case  of  Lasala  v.  Holbrook  involved  also  the  ques- 

1  Farrand  v.  Marshall,  19  Barb.  380,  385,  386.  See  also  Eichardsou  v.  Vt. 
Cent.  E.  R.  Co.,  25  Vt.  465. 

2  Farrand  v.  Marshall,  21  Barb.  409,  415. 

3  Lasala  v.  Holbrook,  4  Paige,  169;  Radcliff  v.  Mayor.  &c.,  4  Comst.  195 
Hunt  V.  Pcake,  Johns.  Ch.  (Eng.)  705  ;  Charless  r.  Rankin,  22  Mo.  566  ;  M'Guire 
V.  Grant,  1  Dutch.  356,  363,  368;  Com.  Dig.,  Action  on  Case  for  a  Nuisance,  A 
Slingsby  v.  Barnard,  1  Rolle,  430;  Panton  v.   Holland,   17  Johns.  92;  Wyatt 
V.  Harrison,  3  Bariicw.  &  Ad.  871  ;  Hunipliries  v.  Brogdcn,  12  Q.  B.  739,  744 
Barnes  v.  Ward,  9  C.  B.  392,  412  ;  Bonomi  v.  Backhouse,  Ellis,  B.  &  E.  622 
642    657;  Hay  v.  Cohoes  Co.,  2  Comst.  159;  Richardson  v.  Vt.  Cent.  R.  R 
Co.,  25  Vt.  465  ;  No.  Eastern  R.  W.  Co.  v.  Elliot,  1  Johns.  &  H.  145  ;  Foley 
V.  Wvcth,  2  Allen,  131  ;  Rowhotham  v.  Wilson,  8  Ellis  &  B.  123,  142;  2  Dane, 
Abr.  717  ;  Howland  v.  Vincent,  10  Mete.  371,  373. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      ;j17 

tioii  liow  far  the  existence  of  a  house  upon  one  man's  land 
prevents  the  adjacent  owner  from  digging  in  his  land  adjoin- 
ing that  upon  Avhich  the  house  is  standing.  In  that  case 
the  complainants  owned  a  church  which  had  stood  on  their 
land  for  thirty-eight  years.  The  line  of  the  defendant's 
land  was  six  feet  distant  from  the  church.  He  commenced 
excavating  for  the  purpose  of  erecting  a  building  covering 
his  lot.  The  effect  was  to  crack  the  walls  of  the  church, 
by  the  settling  of  the  land,  and  the  application  was  for 
an  injunction  to  such  excavation.  The  Chancellor  states 
the  law  as  follows  :  "I  have  a  natural  right  to  the  use 
of  my  land,  in  the  situation  in  which  it  was  placed  by 
nature,  surrounded  and  protected  by  the  soil  of  the  adja- 
cent lots.  And  the  owners  of  those  lots  will  not  be 
permitted   to   destroy  my  land,  by  removing   this   natural 

support  and  barrier My  neighbor  has  the 

*  right  to  dig  a  pit  upon  his  own  land,  if  necessary  [*435] 
to  its  convenient  or  beneficial  use,  when  it  can  be 
done  without  injury  to  my  land  in  its  natural  state.  I  can- 
not, therefore,  deprive  him  of  this  right  by  erecting  a  build- 
ing on  my  lot,  the  weight  of  which  will  cause  my  land  to 
fall  into  the  pit  which  he  may  dig,  in  the  proper  and  legiti- 
mate exercise  of  his  previous  right  to  .improve  his  own 
lot."  1  He  cites  Thurston  v.  Hancock,  with  approbation  of 
the  doctrine  there  maintained,  and  also  the  case  of  Pan- 
ton  V.  Holland,  stated  hereafter.  "  From  the  recent  English 
decisions  it  appears  that  the  party  who  is  about  to  endanger 
the  building  of  his  neighbor,  by  a  reasonable  improvement 
on  his  own  land,  is  bound  to  give  the  owner  of  the  adjacent 
lot  proper  notice  of  the  intended  improvement,  and  to  use 
ordinary  skill  in  conducting  the  same,  and  that  it  is  the 
duty  of  the  latter  to  shore  or  prop  up  his  own  building,  so 
as  to  render  it  secure  in  tlie  mean  time."  ^     He  then  goes 

1  See  also  Beard  v.  Murphy,  37  Verm.  102. 

2  Peyton  v.  Mayor,  &c.,  9  Barnew.  &  C.  725 ;  Massey  v.  Goyder,  4  Carr.  & 
P.  161. 


518  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

on  to  state  that  there  is  a  class  of  cases  where  the  owner  of 
a  building  is  protected  from  the  consequences  of  excavations 
or  alteration  of  the  adjoining  premises.  "  These  are  ancient 
buildings,  or  those  which  have  been  erected  upon  ancient 
foundations,  and  which  by  prescription  are  entitled  to  the 
special  privilege  of  being  exempted  from  the  consequences 
of  the  spirit  of  reform  operating  upon  the  owners  of  the  ad- 
jacent lots,  and  also  those  which  have  been  granted  in  their 
present  situation  by  the  owners  of  such  adjacent  lots,  or 
by  those  under  whom  they  have  derived  their  title."  ^  The 
Chancellor  held  that  the  owners  of  the  church  had  acquired 
no  prescriptive  right,  and  as  they  did  not  hold  directly  or 
indirectly  from  the  grantor  of  the  respondent,  an  injunction 
was  refused. 

But  the  law,  as  stated  by  the  Chancellor,  seems  to 
[*436]  be  *  well  settled  by  that  and  other  cases,  namely, 
that  the  owner  of  a  building  standing  near  the  land 
of  another  has  no  right  to  hold  the  same  protected  from  any 
excavation  in  the  adjacent  land,  which  would  not  injuri- 
ously affect  the  soil  on  which  it  stands,  if  not  burdened  with 
such  building,^  unless  the  owner  of  both  parcels  had  con- 
veyed the  parcel  and  the  dwelling-house ;  for  in  that  case 
the  right  of  having  it  supported  passed  with  the  same  for 
the  benefit  of  whoever  may  be  the  owner  thereof,  and  the 
owner  of  the  adjacent  parcel  took  it  charged  with  the  duty 
or  servitude  of  supporting  the  house,  as  well  as  the  natural 
soil  on  which  it  stands.^     Or,  unless  the  house  shall  have 

1  Ante,  p.  50 ;  Dodd  v.  Holme,  1  Adolph.  &  E.  493  ;  per  Littledale,  J.,  post, 
sect.  4,  pi.  7 ;  Hide  v.  Thornborough,  2  Oarr.  &  K.  250. 

2  M'Guirc  V.  Grant,  1  Dutch.  356,  362  ;  Gayford  v.  Nichols,  9  Exch.  702, 
708;  Richardson  v.  Vt.  Cent.  R.  R.  Co.,  25  Vt.  465*;  Hunt  v.  Peake,  Johns. 
Ch.  (Eng.)  705,  710;  No.  East.  R.  W.  Co.  v.  Elliot,  1  Johns.  &  H.  145,  153; 
Smith  V.  Keniick,  7  C.  B.  515,  565. 

3  Cox  V.  Matthews,  1  Ventr.  237  ;  Palmer  v.  Fleshees,  I  Sid.  167  ;  s.  c,  under 
name  of  Palmer  v.  Fletcher,  1  Lev.  122  ;  M'Guire  v.  Grant,  1  Dutch.  356,  365  ; 
Richards  v.  Rose,  9  Exch.  218;  Humphries  v.  Brogden,  12  Q.  B.  739,  746; 
Caledonian  R.  W.  Co.  v.  Sprot,  2  Macq.  II.  of  L.  Cas.  449  ;  Harris  ».  Ryding, 
5  Mees.  &  W.  71 ;  No.  East  R.  W.  Co.  v.  Elliot,  1  Johns.  &  H.  145,  153 ;  Solo- 
mon V.  Vintners'  Co.,  4  Hurlst.  &  N.  585,  597  ;  United  States  v.  Appleton,  I 
Sumn.  492,  500  ;  Eno  v.  Del  Vccchio,  4  Duer,  53. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      519 

stood  SO  long  as  to  have  acquired  a  prescriptive  right  to 
such  support  as  an  easement,  in  either  of  wliich  latter  cases, 
if  the  owner  of  the  adjacent  parcel  dig  tlie  same  to  the  in- 
jury of  such  house  he  will  be  held  responsible.^ 

8.  While  the  doctrines  above  stated  are  sustained  by  Pan- 
ton  V.  Holland,  another  important  principle  is  there  estab- 
lished, that,  although  one  may  dig  in  his  own  land  for  all 
lawful  purposes,  and  by  so  doing  may  injure  a  dwelling- 
house  recently  erected  by  another  upon  the  adjacent  parcel 
of  land,  yet  he  has  no  right  to  do  this  carelessly,  nor 
with  an  intent  *  to  injure  the  occupant  of  the  neigh-  [*437] 
boring  tenement.  In  that  case  the  defendant,  in 
erecting  a  house  in  New  York,  dug  the  foundations  deeper 
than  those  of  a  house  standing  upon  the  adjacent  parcel, 
whereby  the  walls  of  the  house  were  injured.  The  court, 
"Woodworth,  J.,  says:  "On  reviewing  the  cases,  I  am  of 
opinion  that  no  man  is  answerable  in  damages  for  the  rea- 
sonable exercise  of  a  right,  when  it  is  accompanied  by  a  cau- 
tious regard  for  the  rights  of  others,  when  there  is  no  just 
ground  for  the  charge  of  negligence  or  unskilfulness,  and 
when  the  act  is  not  done  maliciously."  The  court  cite 
Thurston  v.  Hancock,  with  approbation.  "  The  result  of 
my  opinion  is,  that  the  plaintiff  has  not  shoT^n  a  right  to 
recover  damages  in  this  case,  unless  it  be  on  the  ground  of 
negligence  in  not  taking  all  reasonable  care  to  prevent  the 
injury.     That  is  a  question  of  fact."  ^ 

1  Lasala  v.  Holbrook,  supra  ;  Hide  v.  Thornborough,  2  Carr.  &  K.  250  ; 
Stansell  v.  JoUard,  1  Selw.  N.  P.  457,  cited  by  Parke,  B. ;  Humphries  v.  Brog- 
den,  12  Q.  B.  739,  749 ;  Bonomi  v.  Backhouse,  Ellis,  B.  &  E.  622,  646,  660 ; 
Partridge  v.  Scott,  3  Mees.  &  W.  220 ;  M'Guire  v.  Grant,  1  Dutch.  356,  364  ; 
Eno  V.  Del  Vecchio,  4  Duer,  53,  64  ;  Brown  v.  Windsor,  1  Crompt.  &  J.  27. 

2  Panton  v.  Holland,  17  Johns.  92;  Foley  v.  Wyeth,  2  Allen,  131  ;  Trower 
V.  Chadwick,  3  Bing.  n.  c.  334  ;  Bradbec  v.  Clirist's  Hospital,  4  Mann.  &  G. 
714,  758;  Dodd  v.  Holme,  1  Adolph.  &  E.  493;  Radcliff  v.  Mayor,  &c.,  4 
Comst.  195,  203  ;  Richart  v.  Scott,  7  Watts,  460 ;  M'Guire  v.  Grant,  1  Dutch. 
356,  361  ;  Thurston  v.  Hancock,  12  Mass.  220;  Shrieve  v.  Stokes,  8  B.  Monr. 
453  ;  Massey  v.  Goyder,  4  Carr.  &  P.  161  ;  Hay  v.  Cohoes  Co.,  2  Comst.  159; 
Richardson  'v.  Vt.  Cent.  R.  R.  Co.,  25  Vt.  465  ;  Charless  i'.  Rankin,  22  Mo.  566  ; 
Hart  V.  Baldwin,  1  N.  Y.  Leg.  Obs.  139.  Sec  also  Humes  v.  Mayor,  &c.  1  Humph. 
407. 


520  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

9.  This  doctrine  is  fully  sustained  in  the  English  courts, 
both  as  to  excavations  upon  the  surface  and  in  working  mines. 
If  a  stranger  digs  away  the  support  of  one's  soil  or  his  house, 
and  the  same  is  thereby  injured,  he  is  liable  in  damages. 
So  is  the  adjacent  land-owner,  if  he  do  it  wrongfully,  care- 
lessly, and  negligently.^ 

10.  In  Radcliff  v.  Mayor,  &c.,  Bronson,  C.  J.  is  not  dis- 
posed to  limit  the  power  of  any  man  over  his  own  premises 
by  rules  even  as  narrow  as  those  above  stated.  "He  may 
dig  in  his  own  land,  though  the  house  which  his  neighbor 
has  previously  erected  at  the  extremity  of  his  land  be  there- 
by undermined  and  fall  into  the  pit."     He  criticises 

[*438]  the  *language  used  in  Lasala  v.  Holbrook,  as  carry- 
ing the  doctrine  of  a  natural  right  to  hold  one's 
land  free  from  interference  by  the  adjacent  owner's  removing 
its  natural  support  too  far,  especially  in  a  city.  "I  think  the 
law  has  superseded  the  necessity  of  negotiation  by  giving 
every  man  such  a  title  to  his  own  land  that  he  may  use  it 
for  all  the  purposes  to  which  such  lands  are  usually  applied, 
without  being  answerable  for  the  consequences,  provided  he 
exercises  proper  care  and  skill  to  prevent  any  unnecessary 
injury  to  the  adjacent  land-owner."  ^ 

11.  One  of  the  cases  relied  on  in  the  above  case  was  that 
of  Wyatt  V.  Harrison,  where  the  court,  in  speaking  of  a 
party's  right  to  dig  on  his  own  land,  say  :  "  But  if  I  have 
laid  an  additional  weight  upon  my  land,  it  does  not  follow 
that  he  is  to  be  deprived  of  the  right  of  digging  in  his  own 
ground  because  mine  will  then  become  incapable  of  support- 
ing the  artificial  weight  which  I  have  laid  upon  it."  ^ 

12.  Whoever  erects  a  house  upon  his  own  premises  must, 
in  order  to  complain  of  an  injury  by  excavation  in  the  ad- 

1  Jeffries  v.  Williams,  5  Exch.  792  ;  Bibby  v.  Carter,  4  Hurlst.  &  N.  153. 

2  Radcliff  V.  Mayor,  &c.,  4  Comst.  195,  201,  203.  But  see  Farrand  u.  Mar- 
shall, 21  Burl).  409,  negativing  the  doctrine  that  one  may  dig  in  his  own  land 
so  as  to  cause  the  soil  of  his  neighbor  to  fall,  and  declaring  the  above  doctrine 
of  Bronson,  J.,  an  ohite)-  dictum.     See  2  Washb.  Real  Prop.  75,  note. 

•*  Wyatt  V.  Harrison,  3  Barncw.  &  Ad.  871. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      521 

jaceiit  soil  affecting  such  structure,  not  only  build  of  proper 
materials  and  in  a  proper  manner,  but  he  cannot  otherwise 
acquire  a  prescriptive  right  to  have  the  foundations  of  his 
house  undisturbed  by  excavations  made  with  ordinary  care 
and  diligence  in  the  adjacent  premises.  "  If  the  first  builder, 
in  the  construction  of  his  wall,  use  materials  unfit  for  the 
purpose,  or  the  materials,  though  suitable,  arc  so  unskilfully 
built  in  the  wall  that  it  cannot  be  preserved  and  supported 
by  ordinary  care  and  diligence,  with  the  use  of  the  ordinary 
and  usual  means  resorted  to  in  practice  for  that  purpose, 
when  the  second  builder  comes  to  dig  out  the  foundation  for 
his  house,  but  notwithstanding  the  use  of  such  care, 
*diligence,  and  means  by  the  latter  to  prevent  it,  the  [*439] 
walls  give  way,  and  with  it  a  part  or  the  whole  of  the 
first  building  falls,  occasioning  small  or  great  loss  to  the 
owner  thereof,  it  must  bo  regarded  as  damnum  sine  injuria^ 
for  which  the  second  builder  is  in  no  wise  responsible."  It 
was  contended  that,  as  the  house  had  stood  over  twenty-one 
years,  the  adjacent  owner  had  no  right  to  disturb  it  by 
excavations  in  his  premises,  although  the  house  were  im- 
properly or  insufficiently  built.  But  the  court  repudiate 
the  doctrine  in  express  terms  :  "  Such  a  principle,  when 
carried  out,  may  go  to  exclude  the  owner  of  a  lot  in  a  situa- 
tion similar  to  that  of  the  defendant  from  building  on  it 
altogether,  which  would  be  inconsistent  with  principles  of 
sound  policy,  as  well  as  of  law  and  natural  justice."  ^ 

So,  though  one  by  excavating  within  his  own  premises 
cause  an  injury  to  his  neighbor's  premises,  he  would  not  be 
responsible  therefor,  if  he  had  no  just  cause  for  supposing 
such  a  consequence  would  follow,  and  it  resulted  from  some 
unforeseen  cause.^ 

13.  In  determining  whether  a  party  had  been  guilty  of 
carelessness  in  excavating  his  own  land,  reference  may  be 

1  Ricliart  v.  Scott,  7  Watts,  460  -  464.     See  Littkdah,  J.,  in  Dodd  v.  Holme, 
1  Adolph.  &  E.  49.3  ;  Hunt  v.  Peake,  Johns.  Ch.  (Eng.)  705,  711. 

2  Shrieve  v.  Stokes,  8  B.  Monr.  453;  Chadwick  v.  Trower,  6  Bing.  n.  c.  1. 


522  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Cii.  IV. 

had  to  what  is  usually  done  by  other  builders  in  similar 
cases,  since  the  law  does  not  impose  upon  any  owner  the 
exercise  of  extraordinary  means  of  precaution,  unless  such 
care  was  obviously  needed  from  the  situation  of  the  prop- 
erty.i 

14.  The  recent  case  of  Hunt  v.  Peake  sustains  the  doc- 
trine which  the  Vice-Chancellor  regarded  as  a  controverted 
one,  that,  if  one  enjoys  the  support  of  a  dwelling-house  upon 
land  adjoining  that  of  another  for  twenty  years,  the  latter 

may  not  withdraw  that  support  by  excavations  made 
[*440]   in  his  *land.2     And  in  a  still  more  recent  case,  it 

was  settled,  that,  "  if  a  land-owner  conveys  one  of 
two  closes  to  another,  he  cannot  afterwards  do  anything  to 
derogate  from  his  grant ;  and  if  the  conveyance  is  made  for 
the  express  purpose  of  having  buildings  erected  on  the  land 
so  granted,  a  contract  is  implied  on  the  part  of  the  grantor 
to  do  nothing  to  prevent  the  land  from  being  used  for  the 
purpose  for  which,  to  the  knowledge  of  the  grantor,  the 
conveyance  is  made."  This  is  said  of  the  right  which  one 
may  acquire  thereby  to  the  support  of  buildings  which  he 
may  erect  upon  his  own  land  against  the  adjacent  land  of 
another.'^ 

15.  A  question  involving  several  of  the  matters  above 
considered  was  raised  in  a  late  case  in  Massachusetts,  Foley 
V.  Wyeth,  where,  after  assuming  the  law  to  be  well  settled, 
that,  "  if  the  owner  of  land  makes  an  excavation  in  it,  so 
near  to  the  adjoining  land  of  another  proprietor  that  the  soil 
of  the  latter  breaks  away  and  falls  into  the  pit,  he  is  respon- 
sible for  all  the  damage  thereby  occasioned,"  the  court  dis- 

1  Shrieve  v.  Stokes,  8  B.  Monr.  453,  457.  See  Charless  v.  Rankin,  22  Mo. 
566,  574. 

'■^  Hunt  V.  Peake,  Johns.  Ch.  (Eng.)  705;  rartridge  v.  Scott,  3  Mees.  &  "W. 
220;  Rogers  v.  Taylor,  2  Ilurlst.  &  N.  828,  833;  Smith  v.  Kenrick,  7  C.  B. 
565;  Stanseli  v.  JoUard,  1  Selw.  N.  P.  457;  Humphries  v.  Brogden,  12  Q.  B. 
736,  750  ;  Rowhotiiam  v.  Wilson,  8  Ellis  &  B.  140,  per  Bmmivell,  B. 

3  No.  East.  R.  W.  Co.  v.  Elliot,  1  Johns.  &  H.  145,  153  ;  Caledonian  R.  W. 
Co.  V.  Sprot,  2  Macq.  H.  of  L.  Cas.  449 ;  Rowbotham  v.  Wilson,  8  H.  of  L. 
Gas,  348. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      523 

CUSS  the  point,  how  far  the  owner  of  land  adjoining  that  on 
which  a  house  has  been  recently  erected  would  be  liable  for 
an  injury  to  the  same  by  digging  witliin  his  own  premises,  if 
he  was  not  chargeable  with  a  want  of  due  care  and  skill  or 
positive  negligence  in  so  doing.  And  the  conclusion  to 
which  they  arrive  is,  that,  in  the  absence  of  any  proof  of 
carelessness,  negligence,  or  unskilfulness  in  the  execution  of 
the  work,  so  far  as  the  house  was  concerned,  a  jury  had  no 
right  to  regard,  as  an  element  of  damage,  the  fact  that  such 
digging  caused  the  foundation  of  the  plaintiff's  house  to 
crack  and  settle,  although  he  were  entitled  to  re- 
cover for  *causing  the  natural  soil  of  the  plaintiff  [*441] 
to  fall  into  the  excavation  made  by  the  defendant. 
And  in  this  they  coincide  with  the  rule  which  was  practically 
applied  in  Thurston  v.  Hancock. 

In  the  case  of  Foley  v.  Wyeth,  the  defendant  had  not  only 
caused  the  soil  upon  the  plaintiff's  premises  to  fall  into  the 
place  excavated,  and  also  the  soil  under  a  way  that  led  to 
the  plaintiff's  premises,  but  had  also  caused  the  foundation 
of  his  house  standing  thereon  to  crack  and  settle.  But  as 
there  was  no  evidence  of  this  having  been  done  carelessly,  it 
was  held  that  he  could  recover  for  the  first,  but  not  for  the 
last  injury  alleged.  As  to  the  first,  the  court  say  :  "  This 
does  not  depend  upon  negligence  or  unskilfulness,  but  upon 
the  violation  of  a  right  of  property  which  has  been  invaded 
and  disturbed."  ^  And  similar  language  is  used  by  the 
court  of  Vermont,  in  Richardson  v.  Vermont  Central  Rail- 
road Co.^ 

Nor  is  it  enough  to  hold  the  defendant  liable  for  an  in- 
iury  to  adjacent  land  arising  from  his  digging  in  his  own, 
that  what  he  did  contributed  to  the  injury,  the  plaintiff  must 
show  that  he  did  not,  himself,  contribute  to  the  injury  com- 
plained of.2 

1  Foley  V.  Wyeth,  2  Allen,  L31. 

2  Rk-hardson  v.  Vt.  Cent.  R.  R.  Co.,  25  Vt.  465,  471. 

3  Smith  V.  Hardesty,  31  Mo.  412. 


524  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

But,  say  the  court,  in  Foley  v.  Wyeth,  "  this  unqualified 
rule  is  limited  to  injuries  caused  to  the  land  itself,  and  does 
not  afford  relief  for  damages  by  the  same  means  to  artificial 
structures.  For  an  injury  to  buildings  which  is  unavoidably 
incident  to  the  depression  or  slide  of  the  soil  upon  which 
they  stand,  caused  by  the  excavation  of  a  pit  on  adjoining 
land,  an  action  can  only  be  maintained  when  a  want  of  due 
care  and  skill,  or  positive  negligence  has  contributed  to  pro- 
duce it." 

It  will  be  perceived  that  the  court  here  consider  an  estate 
in  land  with  buildings  thereon,  if  recently  erected,  as  made 
up  of  two  parts  or  elements,  so  far  as  the  claim  of  the  owner 
thereof  for  damages  by  removal  of  its  lateral  support  is  con- 
cerned. In  respect  to  the  land,  they  hold  it  to  be  an  invari- 
able rule  of  property,  that  a  removal  of  its  lateral  support  by 
excavation  in  the  adjacent  parcel  is  a  violation  of  the 
[*442]  right  *of  property,  and  is  actionable,  independent  of 
the  consideration  whether  it  was  done  with  or  with- 
out negligence  or  unskilfulness.  Whereas,  whether  the  in- 
jury to  the  house  shall  be  actionable  depends  upon  its  being 
done  with  a  want  of  due  care  or  skill,  or  not. 

Regarding  the  first  part  of  this  proposition  as  res  adjndicata, 
although  it  is  said  by  Harris,  J.,  in  Farrand  v.  Marshall,  that 
the  rule,  as  stated  by  Rolle,  had  never  been  formally  adopted 
as  a  rule  of  law,  except  by  the  obiter  dicta  of  some  of  the 
judges,  it  only  remains  to  ascertain  by  what  rule  the  second 
part  of  the  above  proposition  is  to  be  applied.  What  is  the 
measure  of  the  care  and  diligence  necessary  to  be  observed 
in  respect  to  such  house,  in  excavating  the  soil  of  the  adjoin- 
ing lot  ? 

It  seems  to  be  conceded,  in  all  the  cases,  that  no  man  has 
a  right  to  claim  any  aid  or  support  in  respect  to  his  house,  if 
a  modern  one,  from  the  land  of  the  adjacent  owner.  So  far 
as  the  right  of  support  of  his  land  by  that  of  his  neighbor  is 
a  servitude,  or  in  the  nature  of  a  servitude,  upon  the  latter, 
he  has  no  right  to  add  to  or  increase  it  by  putting  any  new 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      525 

burdeu  upon  his  land.  In  other  words,  no  man  can  claim 
for  his  land  and  house  together  any  greater  amount  of  sup- 
port from  his  neighbor's  land  than  he  had  originally  a  right 
to  claim  for  merely  his  land  alone,  Avhile  unburdened  by  a 
house.^ 

But  as  the  case  supposes  that  the  house  may  be  injured  by 
the  digging  in  the  adjacent  soil,  and  its  owner  may  be  with- 
out remedy  therefor,  though  such  digging  may  have  removed 
the  necessary  natural  support  of  his  soil,  under  one  state  of 
facts,  and  for  a  similar  injury  he  may  have  a  remedy  under 
a  different  state  of  facts,  and  that  this  difference  consists  in 
the  degree  of  care  with  which  it  is  done,  it  becomes 
important  to  ascertain  what  rule  or  test  *is  to  be  ap-  [*443] 
plied  in  measuring  the  degree  of  care  which  is  to  be 
exercised  by  the  one  causing  the  excavation  in  his  own  land. 

It  is  obvious  that  the  court  mean  to  apply  a  different 
test  than  the  mere  fact  of  removing  the  natural  support, 
for  that  was  done  in  Foley  v.  Wyeth,  and  it  was  held  that, 
in  order  to  recover  for  the  house,  the  owner  must  show, 
positively,  want  of  due  care  or  skill,  or  actual  negligence. 
Besides  they  say :  "  To  make  a  justifiable  use  of  his  own, 
he  (the  one  causing  the  excavation)  must  have  a  proper 
respect  to  the  appropriation  which  has  already  been  made 
by  the  owners  of  the  surrounding  territory,  and,  there- 
fore, when  one  undertakes  to  make  an  excavation  on  his 
land,  he  must  consider  how  it  will  be  likely,  in  view  of  the 
existing  and  actual  occupation  of  others,  to  affect  the  soil 
of  his  neighbor,"  And  this  was  said  in  answer  to  the 
ground  taken,  that  if  the  injury  complained  of  was  in  any 
degree  caused  by,  or  would  not  have  occurred  but  for  the 
additional  weight  of  buildings  erected  on  their  land  by 
persons  other  than  the  plaintiff,  he  could  not  recover  in 
the  action,  and  was  a  kind  of  corollary  to  the  proposition, 
that  "  he  who,  in  the  execution  of  an  enterprise  for   his 

1  Charless  v.  Rankin,  22  Mo.  566,  571  ;  Partridgi'  v.  Scott,  3  Mees.  &  W. 
220;  Farrand  v.  Marshall,  19  Barb.  380,  387. 


526  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

own  benefit,  changes  the  natural  condition  of  the  parcel 
of  territory  to  which  he  has  title,  and  thereby  takes  away 
the  lateral  support  to  which  the  owner  of  the  adjoining 
estate  is  entitled,  cannot  exonerate  himself  from  respon- 
sibility by  showing  that  the  particular  injury  complained 
of  would  not  have  occurred  if  other  persons  had  never 
made  alterations  in  or  improvements  upon  their  respective 
closes." 

The  way  to  reconcile  these  views  and  suggestions,  and 
still  to  retain  the  distinction  between  an  injury  to  the  nat- 
ural soil  and  an  injury  to  the  same  soil  burdened  by  a  house 
or  other  structure  thereon,  seems  to  require  some  suoii  rule  as 
this  ;  not  only  must  the  owner  of  the  land,  when  caus- 
[*444]  ing  an  excavation  thereon  to  be  made,  so  *conduct 
it  as  not  to  disturb  the  soil  of  the  adjacent  lot  in  its 
natural  state,  but  if  there  be  a  dwelling-house  thereon,  he 
must  use  such  care  in  the  mode  of  excavating,  to  the  extent 
above  stated,  as  not  to  injure  the  house,  provided  this  can 
be  done  witliout  subjecting  himself  to  extraordinary  expense 
in  guarding  against  such  injury.  He  might,  for  instance, 
if  there  were  no  house  standing  upon  the  land,  dig  and  re- 
move portions  of  the  lateral  support  for  a  considerable  dis- 
tance without  substituting  any  such  safeguard  as  a  wall, 
and  no  injurious  consequences  would  follow.  Whereas  if 
there  were  a  house  standing  thereon,  in  order  safely  to  carry 
the  excavation  to  the  same  extent,  bordering  upon  the  land 
of  his  neighbor,  he  must  expose  only  small  portions  of  the 
soil  at  a  time,  as  was  done  in  Lasala  v.  Holbrook,  where  the 
defendant,  as  fast  as  he  dug  away  his  soil  near  the  land  of  the 
plaintiff,  sup[)lied  a  support  by  the  cellar-wall  on  which  he 
was  to  rest  his  own  house. 

Still,  even  in  this  respect,  he  would  only  have  to  use 
reasonable  care  and  diligence.  Thus  he  would  not  have  to 
prop  up  his  neighbor's  house,  if  the  owner  was  cognizant  of 
the  excavation  being  made,  in  order  to  prevent  its  falling.^ 

1  Peyton  v.  Miiyor,  &c.,  9  Barnew.  &  C.  725  ;  Charless  v.  Rankin,  22  Mo. 
5GG,  574. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      527 

In  forming  a  jndgment  of  what  would  be  a  safe  and  proper 
mode  of  conducting  his  work  of  excavation,  he  may  have  a 
reasonable  regard  to  the  judgment  of  other  practical,  judi- 
cious, and  skilful  men.^ 

But  a  possible  damage  to  another,  in  the  cautious  and 
prudent  exercise  of  a  lawful  right,  is  not  to  be  regarded, 
and  if  a  loss  is  the  consequence,  it  is  damnum  absque  in- 
juria. And  tlie  owner  of  the  house  would  have  no  right 
to  recover  damages,  unless  it  be  upon  the  ground  of 
*negiigence  in  not  taking  all  reasonable  care  to  pre-  [*445] 
vent  the  injury .^ 

16.  Another  circumstance  to  be  regarded  in  measuring 
the  degree  of  care  which  one  must  exercise  in  such  cases,  is 
the  means  and  opportunity  he  had  to  know,  or  have  reasona- 
ble ground  to  believe,  that  he  was  endangering  liis  neighbor's 
property  by  his  acts.  This  matter  is  somewhat  considered  in 
Shrieve  v.  Stokes,^  above  cited.  The  court  there  assume 
that  it  was  the  defendant's  duty  in  digging,  even  upon  his 
own  ground,  and  for  his  own  lawful  purposes,  to  proceed 
with  reasonable  care  and  a  due  regard  to  the  safety  of  the 
neighboring  house.  But  they  say  :  "  We  are  of  opinion  that 
upon  the  question  of  reasonable  care,  in  digging  the  defend- 
ant's cellar  near  the  plaintiff's  house,  it  was  admissible  to 
prove  what  was  usually  done  by  builders  in  digging  cellars 

under  similar  circumstances In  order  to  impose  upon 

the  defendant  the  duty  of  using  any  extraordinary  means  for 
the  protection  of  the  plaintiff's  house,  it  must  have  been 
apparent,  iipon  common  observation,  that  the  digging  of  his 
cellar  would  probably  cause  the  house  to  fall."  There  was 
in  that  case  an  alley  of  two  or  three  feet  in  width  between 
the  cellar  and  the  house,  and  the  court  say  :  "  Unless  the 

1  Charless  v.  Ilankin,  supra. 

^  Piinton  V.  Holland,  17  Johns.  92,  100,  101. 

3  Shrieve  v.  Stokes,  8  B.  Monr.  453,  459.  See  also  Richardson  v.  Vt.  Cent. 
R.  R.  Co.,  25  Vt.  465,  471  ;  Chadwick  v.  Trower,  6  Bing.  n.  c.  1  ;  Dodd  v. 
Holme,  1  Adolph.  &  E.  493 ;  Walters  v.  Pfcil,  Mood.  &  M.  362 ;  post,  sect.  3, 
pi.  7. 


528  THE   LAW   OF   EASEMENTS  AND   SERVITUDES.         [Ch.  IV. 

nature  of  the  intervening  earth  was  such  as  to  render  it 
highly  probable  that  it  would  give  way,  upon  the  cellar  being 
dug  out,  and  thus  cause  the  plaintiff's  house  to  fall,  there 
could  be  no  obligation  on  the  defendant  to  take  any  precau- 
tion, except  that  he  should  not  disturb  or  break  down  the 

alley Unless  the  plaintiff  was  entitled  to  have  his 

house  supported  not  only  by  the  alley,  but  by  the  compact 
earth  on  the  defendant's  lot  adjoining  the  alley,  the  mere 
removal  of  that  earth  was  not  a  breach  of  duty  in 
[*446J  the  ^'defendant.  And  in  that  case  he  could  not  be 
said  to  have  caused  the  loss  to  the  plaintiff,  nor  be 
held  liable  for  it,  unless  he  knew,  or  had  good  reason  to 
believe,  that  the  removal  of  the  earth  up  to  his  own  line 
would  occasion  the  loss  before  the  necessary  support  should 
be  supplied  by  building  up  his  cellar  wall,  or  unless  the  loss 
could  be  fairly  attributed  to  his  want  of  ordinary  skill  or 
care  in  loosening  or  removing  the  earth  from  his  own  lot."  ^ 

It  may  be  stated,  in  this  connection,  that  the  question  of 
the  right  of  the  owner  of  the  house  to  recover  damages  does 
not  depend  upon  the  state  of  repair  of  the  house.  It  was  held 
that  such  owner  might  recover  in  an  action,  although  it 
appeared  that  the  house,  if  let  alone,  would  not  have  stood 
six  months.^ 

Further  illustrations  of  the  doctrine  of  the  right  of  ease- 
ment and  servitude  of  lateral  support  for  land  will  be  found 
when  the  subject  of  subjacent  support  of  land  is  considered, 
in  a  subsequent  part  of  this  work,  as  the  analogy  between 
the  two  renders  it  unnecessary  to  repeat  in  respect  to  one 
what,  upon  several  points,  may  be  said  of  the  other.^ 

The  case,  however,  of  Dodd  v.  Holme  may  be  properly 
referred  to  at  some  greater  length,  as  it  bears  upon  several 
of  the  points  already  referred  to.  In  this  case  the  plaintiff 
had  an  ancient  house  standing  on  his  own  land  near  that  of 
the  defendant.  The  latter,  in  order  to  build  a  house  on  his 
land,  dug  a  cellar  which  came  within  about  four  feet  of  the 

1  Dodd  V.  Holme,  1  Adolph.  &  E.  493.  2  p„s^  sect.  4,  pi.  4,  et  seq. 


Sect.  1.]    EASEMENT  OF  LATERAL  SUPPORT  OF  LAND.      529 

plaintiff's  house.  The  house  began  to  give  way,  when  the 
defendant  attempted  to  shore  it  up.  The  weather  was  un- 
usually wet,  and  partly  from  this  cause,  and  partly  from 
a  want  of  shores,  the  house  fell.  The  question  submitted  to 
the  jury  was,  "  T^hether  the  fall  was  occasioned  by  the 
defendant's  negligence  ?  "  The  jury  found  for  the  plaintiff, 
and  the  court  sustained  the  verdict.  But  in  doing  this,  a 
part  of  the  judges  regard  tlie  fact  of  the  house 
having  been  *an  ancient  one  as  an  important  cir-  [*447] 
cumstance,  taken  in  connection  with  the  fact  of 
negligence  found  by  the  jury.  Taunton,  J.  said  :  "  If  the 
building  had  fallen  down  merely  in  consequence  of  its  infirm 
condition,  that  would  not  have  been  a  damage  by  the  act  of 
the  defendant."  And  Williams,  J. :  "  If  it  was  true  that 
the  premises  could  have  stood  only  six  months,  the  plaintiff 
still  had  a  cause  of  action  against  those  who  accelerated  its 
fall ;  the  state  of  the  house  miglit  render  more  care  necessary 
on  the  part  of  the  defendants  not  to  hasten  its  dissolution." 
But  it  will  be  perceived  that  tliroughout  the  case,  the  plain- 
tiff's house  being  ancient,  that  and  the  land  are  treated  of  as 
an  entire  thing,  each  part  having  an  equal  right  to  protection, 
no  distinction  being  made,  as  in  Thurston  v.  Hancock,  and 
Foley  V.  Wyeth,  between  the  damage  to  the  land  and  that  to 
the  house. ^ 

In  this  connection  reference  may  also  be  made  to  Walters 
V.  Pfeil,^  where  the  court  held,  that  though  if  there  be  two 
houses  adjoining  each  other,  and  it  is  necessary  to  take  down 
one,  the  owner  of  the  other  ought  to  shore  it  up,  if  necessary 
to  its  security,  yet,  though  he  omit  to  do  this,  he  would  not 
be  without  remedy  if  the  other  party  so  irregularly  and  im- 
properly took  down  his  house  as  thereby  to  cause  the  other 
house  to  fall;  or,  in  the  words  of  the  judge  (Tenterden), 
if  "  the  house  of  the  defendant  was  pulled  down  in  a  waste- 
ful, negligent,  and  improvident  manner,  so  as  to  occasion 

1  See  also  Hide  ?•.  Thornborough,  2  Carr.  &  K.  250. 
-  Walters  v.  Pfcil,  Mood.  &  M.  362. 
34 


530  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

« 

greater  risk  to  the  plaintiff's  than  in  the  ordinary  course  of 
doing  the  work  they  would  have  incurred." 

17.  Questions  somewhat  related  to  those  above  alluded 
to,  incidentally  arose  in  the  case  of  Chadwick  v.  Trower, 
which  was  an  action  for  so  carelessly  taking  down  the  de- 
fendant's vault,  that  the  plaintiff's  wine-vault  and  wine 
were  injured.     After  discussing  the  form  of  the  declaration, 

and  what  was  averred  therein  in  respect  to  the  de- 
[*448]   fendant's  *  obligation  to  do  certain  things  in  respect 

to  the  plaintiff's  vault  that  adjoined  his,  the  judge, 
Parke,  B.,  says :  "  The  question  is,  whether  the  law  imposes 
upon  the  defendant  an  obligation  to  take  such  care  in  pull- 
ing down  his  vaults  and  walls  as  that  the  adjoining  vault 
shall  not  be  injured.  Supposing  that  to  be  so,  where  the 
party  is  cognizant  of  the  existence  of  the  vault,  we  are  all 
of  opinion  that  no  such  obligation  can  arise  where  there 
is  no  averment  that  the  defendant  had  notice  of  its  exist- 
ence ;  for  one  degree  of  care  would  be  required  where  no 
vault  exists,  but  the  soil  is  left  in  its  natural  and  solid  state  ; 
another,  where  there  is  a  vault ;  and  another,  and  still 
greater  decree  of  care  would  be  required  where  the  adjoin- 
ing vault  is  of  a  weak  and  fragile  construction."  ^ 

18.  And  there  is  great  force  in  the  remark  of  Wardlaw, 
J.,  in  Napier  v.  Bulwinkle,  as  to  the  gaining  rights  by  one, 
and  imposing  duties  upon  another,  of  two  adjoining  estates 
by  mere  length  of  time  in  which  a  certain  state  of  things  has 
existed.  "  Where  the  enjoyment  was  in  its  nature  hidden, 
or,  although  it  was  apparent,  there  was  no  ready  means  for 
resisting  it  within  the  power  of  the  servient  owner,  assent 
was  not  implied,  and  the  influence  of  twenty  years'  time, 
therefore,  not  acknowledged."  ^ 

1  Chadwick  v.  Trower,  6  Bing.  n.  c.  1. 

2  Napier  v.  Bulwinkle,  5  Rich.  311,  324. 


Sect.  2.]  EASEMENT   OF   SUPPORT   OF   HOUSES.  531 

*SECTION    II.  [*449] 

EASEMENT   OF   SUPPORT   OF   HOUSES. 

1.  Right  of  support  of  liouses  on  each  other  gained  by  grant  or  prescription. 

2.  Rules  of  the  civil  law  upon  the  subject. 

3.  Right  of  mutual  support  when  incident  to  adjoining  houses. 

4.  Right  limited  to  adjoining  houses,  where  it  exists. 

5.  Of  the  care  to  be  used  in  taking  down  a  house  adjoining  another. 

6.  Right  of  support  of  houses  may  be  gained  by  prescription. 

7.  One  responsible  for  want  of  care  in  taking  down  his  house. 

1.  Of  a  charactor  somewhat  analogous  to  that  of  the  ease- 
ment which  the  owner  of  a  house  may  acquire  by  grant  or 
prescription,  of  having  it  supported  by  the  soil  of  an  adjacent 
proprietor,  and  which  has  been  above  considered,  is  that 
which  the  owner  of  a  house  may  acquire  of  having  the  same 
supported  by  an  adjacent  house.  As  both  these  are  artificial 
structures,  this  right  can,  in  no  sense,  be  a  natural  one,  and 
if,  therefore,  it  exist  at  all,  it  can  only  have  been  acquired  by 
grant  or  prescription.^ 

2.  As  a  servitude,  it  was  known  to  the  civil  law  under  the 
name  of  oneris  ferendi,  by  which  the  wall  or  pillar  of  one 
house  is  bound  to  sustain  the  weight  of  the  buildings  of  the 
neighbor,  and  the  owner  of  the  servient  building  was  bound 
to  keep  it  in  repair,  and  sufficiently  strong  for  the  weight  it 
had  to  bear,  unless  it  was  otherwise  expressly  stipulated  by 
agreement,  or  it  had  otherwise  been  practised  for  a  sufficient 
lengtl\  of  time.  And  while  the  wall  was  being  rebuilt,  the 
support  of  the  dominant  house  was  to  be  provided  by  the 
owner  thereof.^ 

3.  There  may  be  a  mutual  right  of  support  by  two  or 
more  houses  arising  from  grant  or  reservation,  where  they 

1  Solomon  v.  Vintner's  Co.,  4  Hurlst.  &  N.  598. 

2  Ayl.  Pand.  309  ;  3  Burge,  Col.  &  F.  Law,  402  ;  Domat,  B.  1,  t.  2,  §  2,  p.  7  ; 
D.  8,  2,  33.  2  Fournel,  Traite  du  Voisinage,  413,  §  248.  The  distinction  be- 
tween the  above  right  or  servitude  and  the  "  Droit  d'appui,"  or  a  simple  right  of 
support,  is  pointed  out  in  the  above  work  of  M.  Fournel,  §  31. 


532  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.  [Cn.  IV. 

[*450]  *are  erected  by  one  owner,  and  are  so  constructed  as 
to  require  such  support,  and  arc  then  conveyed  to 
different  owners,  or  one  is  conveyed  and  the  other  retained 
by  the  original  owner.  The  right  of  support,  in  such  cases, 
is  incident  to  the  property  so  far  as  to  pass  with  it,  unless 
excluded  by  the  terms  of  the  grant.  The  law  in  such  cases 
presumes  a  grant  or  reservation  of  the  right  of  support  in 
favor  of  each  of  the  tenements.^ 

4.  A  question  how  far  an  easement  of  support  may  arise 
in  favor  of  one  house  against  another  came  up  in  Solomon  v. 
Vintners'  Co.,  where  there  were  three  houses  in  a  block. 
The  plaintiff  owned  the  first,  the  defendant  the  third,  and 
the  intermediate  house  standing  between  them  belonged  to 
a  third  person.  The  houses  stood  upon  a  hill,  and  for  over 
thirty  years  had  been  out  of  perpendicular,  the  first  leaning 
towards  and  upon  the  second  and  third.  The  defendant's 
house  being  out  of  repair,  he  pulled  it  down  in  order  to  re- 
build it.  In  consequence  of  this  the  intermediate  house 
leaned  more  than  before,  and  the  plaintiff's  house  fell.  And 
for  this  he  brought  his  action.  There  had  never  been  a 
common  ownership  of  the  houses,  nor  did  it  appear  under 
what  circumstances  they  were  originally  constructed. 

The  court  assumed  that  the  one  who  took  down  the  de- 
fendant's house  was  negligent  in  the  manner  in  which  the 
work  was  done.  The  plaintiff  insisted  that  he  had,  by  long 
enjoyment,  acquired  the  right  to  have  his  house  supported 
by  the  adjacent  house.  But  Pollock,  C.  B.,  in  treating  of 
this,  says :  "  If  the  house  removed  had  been  the  next 
adjoining  the  plaintiff's,  we  should  have  felt  much  em- 
barrassed by  some  cases  and  dicta.  In  Stansell  v.  JoUard,^ 
and  Hide  v.  Thornborough,^  such  a  right  of  support  is  stated 

1  Ilichiirds  v.  Hose,  9  Exch.  218.  Sec  rartridge  v.  Scott,  3  Mees.  &  \V.  220  ; 
Wch.stcr  V.  Stevens,  5  Duer,  553;  Eno  v.  Del  Vecchio,  4  Duer,  53;  United 
States  V.  Ai)[jleton,  1  Suinn.  492,  500;  Partridge  v.  Gilbert,  15  N.  Y.  601  ;  1 
Fournel,  Traite'  dii  Voisinage,  §  31. 

2  Stansell  v.  Jollard,  I  Selw.  N.  P.  457. 

3  Hide  V.  Thornborough,  2  Carr  &  K.  250. 


Sect.  2.]  EASEMENT   OF  SUPPORT   OF  HOUSES.  633 

to  be  *gained  if  the  houses  liave  stood  for  twenty  [*451] 
years,  and  in  Humphries  v.  Brogdcn  ^  Lord  Campbell 
refers  to  these  cases.  It  is  extremely  difficult  to  see  how 
the  circumstance  of  the  houses  having  stood  for  twenty  years 
makes  any  difference,  or  creates  a  right  where  houses  are 
supposed  to  have  been  built  by  different  adjoining  land-own- 
ers, each  with  its  own  separate  and  independent  walls,  but, 
upwards  of  twenty  years  ago,  one  of  them  got  out  of  i)erpen- 
dicular,  and  leaned  upon  and  was  supported  in  part  by  the 
others,  so  that  if  the  latter  were  removed,  the  other  would 

fall And  it  seems  contrary  to  justice  and  reason,  that 

a  man,  by  building  a  weak  house  adjoining  to  the  house  of 
his  neighbor,  can,  if  the  weak  house  gets  out  of  the  perpen- 
dicular, and  leans  upon  the  adjoining  house,  thereby  compel 
his  neighbor  either  to  pull  down  his  own  house,  within 
twenty  years,  or  to  bring  some  action  at  law,  the  precise 
nature  of  which  is  not  very  clear.  Otherwise,  it  is  said,  an 
adverse  right  should  be  acquired  against  him."  But  as  the 
plaintiff's  house  did  not  adjoin  that  of  the  defendant,  the 
court  held  the  latter  could  not  be  responsible  to  the  former 
for  the  injury  to  his  house  by  the  removal  of  the  defendant's 
house. 

Bramwell,  B.  agrees  with  the  Chief  Baron  in  his  conclu- 
sions, but  avoids  the  point  of  how  far  and  when  the  owner 
of  one  house  can  gain  an  easement  of  support  against  an- 
other, as  involving  questions  of  very  great  difficulty  and 
importance,  and  on  which  he  would  rather  not  pronounce 
an  opinion,  without  a  great  deal  more  consideration  than 
he  had  been  able  to  give  them.^ 

The  case  of  Stansell  v.  JoUard,  however,  was  that  of  a 
claim  of  a  right  to  have  an  ancient  house  supported  by  the 
adjacent  soil,  and  not  of  support  of  one  house  by  another. 
The  same  was  true  of  Hide  v.  Thornborough. 

*5.    In  Peyton  v.  Mayor,  &c.,  the  action  was  for   [*452] 

1  Humphries  v.  Brogden,  12  Q.  B.  739,  749. 

2  Solomon  v.  Vintners'  Co.,  4  Hurlst.  &  N.  585  -  603. 


534  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

pulling  down,  by  the  defendant,  of  his  own  house  with- 
out shoring  up  that  of  the  plaintiff,  which  leaned  upon  it, 
by  reason  of  which  the  latter  fell.  The  defendant's  house 
was  old,  and  required  to  be  taken  down.  The  count  in  the 
plaintiff's  writ  assumed  that  the  defendant,  when  he  took 
down  his  house,  was  bound  to  shore  up  the  plaintiff's  house, 
and  it  did  not  aver  that  defendant  failed  to  give  him  notice, 
so  that  the  plaintiff  could  have  done  it  himself;  so  that 
whether  such  notice  was  necessary  was  not  a  question  raised 
in  the  case.  It  did  not  appear  whether  both  houses  were 
built  at  the  same  time  or  at  different  times.  The  freehold  of 
the  two  was  then  in  different  hands.  The  plaintiff  must, 
from  his  situation  in  this  case,  have  known  of  the  act  of  tak- 
ing down  the  defendant's  house.  From  the  want  of  any 
evidence  of  a  grant  of  a  right  of  support  of  plaintiff's  house 
upon  defendant's,  the  court  held,  under  the  plaintiff's  decla- 
ration, he  could  not  recover  for  the  injury  to  his  liouse.^ 

No  obligation  or  servitude  of  support  of  one  buildiffg  by 
another  arises  from  their  mere  juxtaposition,  however  long 
continued.  Nor,  as  it  would  seem,  from  the  one  house,  tot- 
tering and  resting  against  the  other,  which  stands  erect,  in 
its  original  position.^ 

6.  But,  from  the  cases  before  cited,  it  seems  to  be  under- 
stood that  one  may,  under  some  circumstances,  acquire  the 
right  of  supporting  his  house  against  that  of  his  neighbor, 
if  enjoyed  for  a  sufficient  length  of  time.  And  this  will,  at 
any  rate,  be  shown  to  be  the  case  if  there  be  a  wall  of  mu- 
tual support  between  them  answering  to  a  party  wall.^ 

7.    Still  one  may  not,  recklessly,  and  in  a  wasteful 

[*453]   and  *negligent  manner,  take  down  his  own  house 

upon  his  own  land,  and  thereby  cause  injury  to  the 

adjacent  buildings  of  another.      In   taking  down  his  own 

1  Peyton  v.  Mayor,  &c.,  9  Barncw.  &  C.  725;  Partridge  v.  Gilbert,  15  N.  Y. 
601,  612. 

2  See  Napier  v.  Ikil winkle,  5  Rich.  311,  324. 

8  Wiltshire  v.  Sidfortl,  8  Barnew.  &  C.  25'J,  note;  Cubitt  v.  Porter,  8  Barnew. 
&  C.  257. 


Sect.  3.]  EASEMENT   OF   PARTY   WALLS.  535 

house  ho  is  bound  to  exercise  reasonable  care,  and  either  to 
give  the  adjacent  owner  notice  of  the  proposed  alteration  in 
the  premises,  and  an  opportunity  to  protect  his  premises  by 
proper  props  and  guards,  or  to  provide  them  himself,  unless 
the  structure  which  he  takes  down  is  wholly  his  own  and 
upon  his  own  land.  But  if  he  give  the  other  party  notice, 
and  he  fails  to  protect  his  buildings  from  injury,  the  party 
who  takes  down  the  house  is  not  bound  to  use  any  extraor- 
dinary care  in  preventing  an  injury  to  the  premises  of  the 
other  party. 1 

SECTION  III. 

EASEMENT   OF   PARTY   WALLS. 

1.  Servitude  of  the  civil  law  answering  to  party  walls. 

2.  What  constitutes  a  party  wall. 

3.  Either  party  may  build  upon  his  part  of  the  wall. 

4.  Either  party  may  repair  or  enlarge  his  part  of  the  wall. 

5.  Cubitt  V.  Porter.     How  far  one  may  rebuild  the  whole  wall. 

6.  When  a  wall  is  deemed  a  party  wall. 

7.  Degree  of  care  to  be  used  in  repairing  a  party  wall. 

8.  How  far  one  may  underpin  a  party  wall. 

9.  Of  the  respective  rights  of  the  owners  to  repair  party  walls. 

10.  Right  to  use  the  wall  by  one,  though  the  other  house  be  destroyed. 

11.  Covenant  to  pay  for  party  wall  runs  with  the  land. 

12.  Common  wall  erected  by  tenants  for  years  not  a  party  wall. 

13.  Sherred  v.  Cisco.     Of  recovering  expense  of  rebuilding  a  party  wall. 

14.  How  far  destruction  of  premises  destroys  the  easement. 

15.  Easement  mutual,  though  property  in  the  wall  several. 

16.  Burlock  v.  Peck.     How  far  agreements  bind  successive  owners. 

17.  Neither  part}'  may  impair  the  wall  on  his  own  land. 

18.  Rules  of  civil  law  as  to  repair  of  party  walls. 

19.  French  law  as  to  party  walls. 

20.  Law  of  Pennsylvania  as  to  party  walls. 

*  1.  Among  the  urban  servitudes  of  the  civil  law   [*45'1] 

1  Walters  v.  Pfeil,  Mood.  &  M.  362;  Massey  v.  Goyder,  4  Carr.  &  P.  161  ; 
Trower  v.  Chad  wick,  3  Bing.  n.  c.  334  ;  s.  c,  6  Bing.  n.  c.  1,  reversing  the  for- 
mer judgment;  2  Washb.  Real  Prop.  77  ;  Charless  v.  Rankin,  22  Mo.  566,  572  ; 
Eno  V.  Del  Vecchio,  4  Duer,  53,  66  ;  s.  c,  6  Duer,  17  ;  Hart  v.  Baldwin,  1  N. 
Y.  Leg.  Obs.  139;  3  Kent,  Comm.  437  ;  Brown  v.  Windsor,  1  Crompt.  &  J.  20; 
Humphries  v.  Brogden,  12  Q.  B.  739,  751  ;  Partridge  v.  Gilbert,  15  N.  Y.  601, 
612. 


536  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

was  that  of  a  right  in  one  man  to  fix  a  heam  or  piece  of  tim- 
ber or  stone  in  his  neighbor's  wall,  immitendi  tigna  in  pari- 
etem  vicini} 

2.  Corresponding  in  many  respects  to  this,  and  the  servi- 
tude of  oneris  ferendi,  already  mentioned,  is  that  of  party 
walls  at  the  common  law.  By  parti/  walls  are  understood 
walls  between  two  estates  which  are  used  for  the  common 
benefit  of  both,  in  supporting,  for  instance,  timbers  used  in 
the  construction  of  contiguous  buildings  standing  thereon. 
But  the  mere  circumstance  that  a  wall  stands  between  two 
contiguous  buildings,  and  the  timbers  of  the  one  are  sup- 
ported upon  one  side  of  the  wall  and  those  of  the  other  upon 
the  other  side  will  not  necessarily  make  them  tenants  in 
common  of  the  wall.  It  may  have  been  built  by  the  parties 
so  as  to  stand  one  half  upon  the  land  of  each.  But  it  does 
not,  thereby,  make  them  tenants  or  owners  thereof  in  com- 
mon. Each  would  still  own  his  half  in  severalty,  though 
each  may  make  use  of  it  for  tlie  purposes  of  the  support  of 
his  building  erected  upon  or  against  it.  But  if  such  joint 
use  of  such  wall  were  continued  for  twenty  years,  each  ac- 
quires such  a  right,  in  common  with  the  other,  to  enjoy  the 
use  and  benefit  of  it,  that  it  becomes  thereby  properly  a 
party  wall,  and  neither  could  remove  it  or  render  it  insuffi- 
cient to  support  the  building  of  the  other  upon  it. 

So,  if  one  proprietor  erect  two  adjoining  houses,  with  a 
wall  between  them  for  the  purpose  of  supporting  both  build- 
ings, and  the  same  is  necessary  for  that  purpose,  and  he 
then  conveys  one  of  these  dwellings  by  metes  and  bounds, 
by  a  line  running  through  the  centre  of  this  wall,  the  grant 
would  not  only  carry  what  was  within  the  limits  described, 
but  pass,  as  an  easement  appurtenant  to  the  grant,  a  right 
of  support  of  the  house  by  the  entire  wall,  as  well 
[*455]  that  *not  included  as  that  within  the  limits  men- 
tioned in  the  deed.^ 

1  Ayl.  Pand.  309  ;  D.  8,  2,  2. 

2  2  Waslib.  Real  Prop.  78  ;  3  Kent,  Comm.  437  ;  Eno  v.  Del  Vecchio,  4  Ducr, 


Sect.  3.]  EASEMENT   OF   PARTY   WALLS.  537 

Although  party  walls,  murs  mitoi/ens,  are  fully  defined, 
and  the  law  in  respect  to  them  stated  at  much  length  in  the 
treatises  ujron  the  French  law,^  its  rules  seem  to  be  much 
less  satisfactorily  settled  by  the  common  law,  although  the 
cases  vmder  it  are  multiplying  with  the  growth,  and  increase 
of  our  cities.  Thus  it  is  said  that  "  what  the  legal  rights 
and  burden  of  a  '  party  wall '  arc,  as  even  its  definition,  is 
as  yet  scarcely  settled  definitively.  The  term  is  commonly 
applied  to  a  wall  of  which,  if  divided  longitudinally,  the  two 
parts  rest  on  land  belonging  to  different  owners,  built  solidly, 
of  materials  not  easily  divided,  or  whose  parts  cannot  be 
taken  down,  without  danger  to  the  whole  structure.  In 
such  case,  either  party  may  remove  the  half  on  his  own 
land,  if  it  does  not  injure  tlie  other  half,  unless  one  or  the 
other  owner  has  an  easement  by  grant  to  have  his  neighbor 
keep  his  half  to  support  his  own.  Walls,  however,  built  en- 
tirely on  one  man's  land  may  acquire,  by  grant,  the  charac- 
teristics of  party  loalls,'"  the  rights  of  the  parties  in  such 
cases  depending,  exclusively,  on  the  character  of  the  grant. 
Another  Judge  in  the  same  case  defines  a  party  wall  in  its 
general,  ordinary  signification,  as  "  a  dividing  wall  between 
two  houses,  to  be  used  equally  for  all  the  purposes  of  an  ex- 
terior wall  by  both  parties,  that  is,  by  the  respective  owners 
of  both  houses."  "  This  use,  in  its  full,  unrestricted  sense, 
embraces  not  only  the  use  of  the  interior  face  or  side  of  the 
wall,  but  also  such  use  of  it  as  is  necessary  to  form  a  com- 
plete and  perfect  junction  in  an  ordinary,  good  mechanical 
manner  between  it  and  the  exterior  walls  of  the  house." 
"  And  the  right  of  the  grantee  of  such  unrestricted  use 
would  be  the  same  whether  the  wall  stood  one  half  on  the 
land  of  one  owner  and  one  half  on  the  land  of  the  other, 
or  stood  wholly  upon  land  of  the  grantor  of  the  unrestricted 

53,  and  6  Duer,  17  ;  Sherred  v.  Cisco,  4  Sandf.  480  ;  Matts  v.  Hawkins,  5  Taunt. 
20 ;  Cubitt  v.  Porter,  8  Barnew.  &  C.  257  ;  Webster  v.  Steven.'!,  5  Duer,  553 ; 
Murly  V.  M'Dermott,  8  Adolpji.  &  E.  138  ;  3  Kent,  Comm.  437  ;  1   Fournel, 
Traite'  du  Voisinage,  110;  2  Ibid.  217. 
1  1  Le  Page,  Desgodets,  39  -  122, 


538  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.        [Cn.  IV. 

use."     But  he  adds,  that  the  term  "  party  wall  "  has  never 
been  judicially  defined. ^ 

In  another  case,  the  question  grew  out  of  the  terms  of  the 
grant,  but  in  determining  it  the  court  goes  somewhat  into 
the  nature  of  the  right  claimed.  The  owner  of  two  lots  upon 
a  street  which  faced  to  the  south,  upon  the  eastern  one  of 
which  was  a  three-story  brick  house  against  whose  west  wall 
there  was  a  one-story  brick  building  standing  upon  the  west- 
ern lot.  He  conveyed  the  western  lot  bounding  it  on  the 
east  by  the  west  line  of  this  three-story  building,  "  the 
owners  on  both  sides  to  have  mutual  use  of  the  present  par- 
tition wall."  A  question  was  made  as  to  the  height  to 
which  the  purchaser  might  raise  his  house,  and  avail  himself 
of  the  west  wall  of  the  three-story  house  as  a  party  wall. 
The  purchaser  claimed  a  right  to  insert  joists,  &c.,  into  the 
same  to  its  whole  extent,  as  had  been  done  with  the  one- 
story  building  then  standing.  The  court  held  that  as  a 
general  principle  the  use  of  such  a  wall  was  mutual,  but 
that  it  must  be  a  reasonable  use,  and  such  that  neither  of  the 
parties  shall  thereby  inflict  substantial  injury  upon  the  other, 
and  that  neither  had  a  right  to  remove  it  or  destroy  it,  nor 
■  appropriate  it  exclusively  to  his  own  use.  But  that,  as  in 
the  terms  of  the  grant  in  this  case,  "  the  present  partition 
wall "  was  the  subject-matter  conveyed,  it  excluded  the  idea 
of  a  reservation  or  grant  of  the  whole  wall  as  being  a  parti- 
tion wall,  and  therefore  the  owner  of  the  west  lot  could  only 
use  it  as  a  party  wall  to  the  height  of  his  original  building.^ 

3.  In  Matts  v.  Hawkins,  where  the  wall  had  been  built 
half  upon  the  land  of  each  land-owner,  it  was  held  that 
either  party  had  a  right  to  carry  up  his  half  of  the  wall 
above  that  of  the  half  of  the  other  proprietor,  if  he  saw  fit. 

4.  The  case  of  Eno  v.  Del  Vecchio  reviews  the  cases  upon 
the  subject  of  party  walls,  and  states,  in  addition  to  what  is 
embraced  in  the  above  propositions,  that  so  long  as  the  wall 
is  capable  of  answering  the  purposes  for  which  it  was  erected, 

1  Fcttretch  v.  Leamy,  9  Bosw.  525.        ■^  Trice  v.  McConncll,  27  111.  255. 


Sect.  3.]  EASEMENT   OF   PARTY  WALLS.  539 

the  owner  of  either  part  may  underpin  the  foundation,  sink 
it  deeper  and  increase  its  thickness  within  the  limits  of  his 
own  lot,  or  its  length  or  height,  if  he  can  do  so  without  in- 
jury to  the  building  on  the  adjoining  lot.  But  he  cannot 
interfere  witli  the  wall  in  any  manner,  unless  he  can  do  so 
without  injury  to  the  adjoining  building,  or  without  the  con- 
sent of  the  owner  of  such  building.  lie  cannot  pare  off  the 
part  of  the  wall  that  stands  on  his  own  land,  so  as  to  render 
the  remainder  insufficient  or  unsafe,  or  excavate  under  the 
part  of  the  wall  upon  his  own  premises,  to  the  permanent 
injury  thereof.^ 

The  ground  on  which  the  rights  and  liabilities  of  the  own- 
ers or  occupants  of  party  walls  rest,  are  thus  stated  by  the 
court  of  Pennsylvania,  in  considering  the  law  of  that  State 
upon  the  subject:  "When  it  (the  wall)  is  constructed,  the 
regulation  of  its  enjoyment  and  repair  is  as  plain  as  that  be- 
longing to  any  other  property  in  common."  ^ 

5.  In  the  case  of  Cubitt  v.  Porter,  Bayley,  J.  says :  "  The 
jury  found  it  was  a  party  wall.    They  did  not,  in  terms,  find 

that  it  was  common  property Whore  a  wall 

is  *  common  property,  it  may  happen  either  that  a  [*456] 
moiety  of  the  land  on  which  it  is  built  may  be  one 
man's,  and  the  other  moiety  another's,  or  the  land  may  be- 
long to  the  two  persons  in  undivided  moieties."  In  that 
case,  one  of  the  parties  took  down  the  dividing  wall,  and  re- 
built it  of  a  greater  height  than  the  former  one,  and  it  was 
held  he  was  not  liable  in  trespass  to  the  owner  of  the  house 
upon  tlue  other  side  of  the  wall,  the  jury  having  found  it  was 
a  party  wall. 

Holroyd,  J.  says :  "  The  presumption  arising  from  the 
acts  of  enjoyment  is,  that  the  wall  was  the  property  of  the 
plaintiff  and  defendant  as  tenants  in  common,  for  the  law 
will  presume  that  what  was  done  without  opposition  for  a 
considerable  time  was  done  rightfully,  and  that  these  acts 

1  See  Webster  v.  Stevens,  5  Duer,  553. 
-  Evans  v.  Jayne,  23  Penn.  St.  36. 


640  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.         [Ch.  IV. 

of  enjoyment  were  lawful.  That  being  the  case,  thefe  was 
abundant  evidence  upon  the  trial  to  raise  a  question  to  go 
to  the  jury,  whether  the  wall  was  or  was  not  the  common 
wall  of  both.  There  having  been  a  joint  use  of  the  wall  by 
both,  each  must  have  had  the  right,  originally,  or  have 
acquired  the  right,  in  the  course  of  time,  by  legal  means. 
The  jury  have  found,  in  effect,  that  it  was  their  common 
property."  i 

6.  So,  in  Wiltshire  v.  Sidford,  the  wall  in  question  had 
been  used  by  the  adjacent  owners  for  near  a  century,  and 
the  court  say  :  "  Where  the  quantity  of  land  contributed  by 
each  was  not  known,  the  reasonable  presumption  from  the 
common  use  of  the  wall  was,  prima  facie,  that  the  wall  and 
the  land  on  which  it  was  built  were  the  undivided  property 
of  both."  2 

These  citations  have  been  made  to  show  the  inclination 
of  the  courts  to  regard  the  long  enjoyment  of  a  wall  by  the 
adjacent  owners  as  evidence  of  its  being  not  only  a  party 
wall,  but  one  in  which  there  is  a  common  owner- 
[*457]  ship,  *  although,  for  purposes  of  remedy,  and  defin- 
ing the  respective  rights  of  such  adjacent  owners,  it 
is  always  open  to  be  shown  that  each  owns  the  part  of  the 
wall  that  stands  upon  his  own  land.^ 

7.  In  Hart  v.  Baldwin,  the  two  houses  were  erected  to- 
gether with  a  common  wall  between  them,  about  fifteen 
years  before  the  injury  complained  of.  The  defendant  dug 
a  cellar  adjoining  it,  in  consequence  of  which  the  front  wall 
of  the  plaintiff  was  injured  by  reason  of  the  party  wall  being 
insufficient.  It  was  held  that  the  defendant,  as  purchaser 
of  the  estate,  was  not  presumed  to  know  the  insufficiency  of 
the  wall,  and  having  used  all  the  requisite  care  in  doing  his 
work,  which  would  have  been  sufficient  to  guard  against  in- 

1  See  3  Kent,  Comm.  438. 

2  Wiltsliire  v.  Sidford,  8  Barncw.  &  C.  259,  note. 

3  Sec  Sherred  v.  Cisco,  4  Stindf.  480,  490  ;  Murly  v.  M'Dermott,  8  Adolph.  & 
E.  138. 


Sect.  3.]  EASEMENT   OF   PARTY   WALLS.  541 

jury  if  the  wall  had  been  a  sufficient  one,  he  was  not  liable 
for  the  injury  to  the  adjacent  owner's  estate.^ 

8.  But  it  was  held,  in  Bradbee  v.  Christ's  Hospital,  that 
one  owner  of  a  party  wall  had  no  right  to  underpin  the 
same  partially  or  wholly,  unless  he  can  do  so  without  injury 
to  tlie  adjacent  messuage,  whether  the  interest  in  the  wall 
were  several  in  the  owners,  one  half  in  each,  or  they  were 
tenants  in  common  of  the  same.  The  finding  in  that  case 
by  the  arbitrator  was,  however,  that  there  was  carelessness, 
negligence,  and  unskilfulness  in  the  defendant  in  underpin- 
ning the  wall  partially,  and  in  not  underpinning  the  whole 
of  the  wall,  whereby  the  plaintiff's  house  sunk  and  sustained 
damage.^ 

9.  But,  as  it  is  obvious  there  may  be  occasions  where 
such  walls  must  be  repaired  or  rebuilt,  an  inquiry  arises, 
how  can  one  of  the  parties  effectually  call  upon  the 

other  *to  join  in  such  repair  or  reconstruction  ?  In  [*458] 
a  case  before  Kent,  Chancellor,  the  party  wall  was 
between  two  old  houses,  and  the  plaintiff,  owner  of  one  of 
them,  wished  to  tear  his  down,  and  erect  a  new  one  in  its 
place.  He  gave  notice  to  the  other  party,  and  requested  him 
to  join  in  the  reconstruction  of  the  wall ;  but  he  declined  to 
act,  and  forbade  his  pulling  down  the  wall.  The  plaintiff 
then  tore  down  his  house  and  the  wall,  and  erected  new  ones 
on  the  sites  of  the  former  house  and  wall,  and  requested  the 
other  owner  to  contribute  his  share  of  the  expense  of  the 
wall.  The  case  found  that  it  was  a  party  wall  in  which  both 
parties  had  an  equal  interest,  and  that  the  wall  was  in  a 
state  of  ruin  and  decay,  and  that  the  plaintiff  could  not  re- 
build without  taking  it  down.  The  Chancellor  states  the 
French  law  to  be  as  follows  :  "  A  common  or  party  wall,  by 
that  law,  is  where  it  has  been  built  at  common  expense,  or  if 

1  Hart  V.  Baldwin,  1  N.  Y.  Leg.  Obs.  139.  See  Shrieve  v.  Stokes,  8  B.  Monr. 
453. 

2  Bradbee  v.  Christ's  Hospital,  4  Mann.  &  G.  714,  761  ;  Webster  v.  Stevens,  5 
Duer,  553,  556.  See  Pardessus,  Traite  des  Servitudes,  265,  cd.  1829;  Dowling 
V.  Henimings,  20  Md.  179. 


642  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  IV 

built  by  one  party,  where  the  other  has  acquired  a  common 
right  to  it." 

Every  wall  of  separation  between  two  buildings  is  pre- 
sumed to  be  a  common  or  party  wall,  if  the  contrary  be 
not  shown,  and  this  not  only  is  a  rule  of  positive  ordinance, 
but  is  a  principle  of  ancient  law.  If  the  common  wall  be 
in  a  state  of  ruin,  and  requires  to  be  rebuilt,  one  party  can 
compel  the  other  by  action  to  contribute  to  the  expense  of 
rebuilding  it.  But  the  necessity  of  the  reparation  must  be 
established  by  the  judgment  of  men  skilled  in  the  business, 
and  made  on  due  previous  notice ;  and  if  the  new  wall  be 
made  wider  or  higher,  &c.,  the  party  building  must  bear  the 
extra  expense.  And  in  this  case  the  Chancellor  decreed  that 
the  owner  of  the  other  estate  should  contribute  his  equal 

share  in  the  expense  of  reconstructing  the  wall.^ 
[*459]  *10.  The  case  of  Brondage  v.  Warner  was  one 
where  the  owner  of  a  store  granted  to  another  the 
right  of  placing  the  wall  for  the  third  story  of  his  house 
upon  the  top  of  the  wall  of  the  grantor's  store,  and  of  occu- 
pying the  end  of  the  store  as  the  end  of  the  house  to  be 
erected  by  the  grantee.  The  grantee  erected  his  building 
accordingly,  and  enjoyed  the  use  of  the  wall  of  the  grantor's 
store.  It  was  held  to  be  the  grant  of  an  easement  only,  but 
to  continue  either  as  long  as  the  wall  stood,  or  in  fee.  And 
he  was  held  to  have  a  right  to  make  use  of  it,  although  the 
rest  of  the  grantor's  store  had  been  burned  down.^ 

11.  So  where  the  owner  of  one  city  lot  granted  to  the 
owner  of  an  adjoining  lot  the  use  of  six  inches  of  his  land 
for  the  purpose  of  erecting  a  party  wall,  and  covenanted  for 
himself,  his  heirs,  and  assigns,  that  whenever  he  should 
erect  a  new  building  on  his  lot,  he  would  pay  tlie  owner  of 
the  other  lot,  his  heirs,  or  assigns,  one  half  part  of  the  value 

1  Campbell  v.  Mcsier,  4  Johns.  Ch.  334  ;  2  Fournel,  Traite  du  Voisinagc,  217, 
236  -  242.  See  Peck  v.  Day,  1  N.  Y.  Leg.  Obs.  312  ;  3  Kent,  Comm.  438  ;  Cu- 
bitt  V.  Porter,  8  Barnew.  &  C.  257  ;  Partridge  v.  Gilbert,  15  N.  Y.  601  ;  post, 
sect.  19. 

2  Brondage  v.  Warner,  2  Hill,  145. 


Sect.  3.]  EASEMENT    OF   PARTY    WALLS.  ,  543 

of  such  portion  of  the  wall  as  he  should  use,  it  was  held  to 
be  a  grant  of  an  easement,  that  it  was  an  incorporeal  here- 
ditament, and  the  covenant  connected  with  it  hound,  and 
was  a  charge  upon,  the  land.^ 

12.  But  where  the  common  or  party  wall  between  two 
tenements  was  erected  by  two  tenants  for  years,  it  did  not 
create  mutual  easements  in  perpetuity  of  support  by  such 
wall  in  favor  of  the  adjacent  estates,  for  the  reason  that 
neither  could  grant  a  permanent  interest  in  the  land  in  his 
occupation.  There  would  be  a  right  of  such  easement  be- 
tween the  respective  tenants  who  constructed  the  wall,  but 
it  would  not  continue  beyond  this  common  term.  Nor 
would  the  respective  reversioners  be  bound  by  such  ar- 
rangement between  their  tenants.^ 

13.  How  far  one  of  two  adjacent  owners  of  premises  is 
bound  to  join  in  building  or  repairing  a  party  wall 
between  *the  same  was  fully  considered  in  the  case  [*460] 
of  Sherred  v.  Cisco,  where  the  case  above  cited  of 
Campbell  v.  Mesier  is  referred  to.  In  that  case,  the  plaintiff 
had  for  many  years  owned  a  lot  of  land  in  New  York,  having 
a  warehouse  upon  it  adjoining  another  warehouse,  from 
which  it  was  separated  by  a  brick  wall,  one  half  of  which 
rested  on  her  land,  and  the  other  upon  the  land  of  the  other 
owner  ;  and  the  beams  of  each  warehouse  rested  on  this 
common  or  party  wall.  The  owner  of  the  other  warehouse 
died,  having  mortgaged  his  estate,  and  soon  after  both  ware- 
houses were  consumed  by  fire,  and  nothing  was  left  of  the 
wall  but  its  foundation. 

The  plaintiff  then  rebuilt  her  warehouse,  and  placed  the 
wall  next  the  other  lot  upon  its  original  foundation  equally 
upon  both  lots,  but  without  any  agreement  in  respect  to  its 
construction  with  the  other  owner.  The  lot  adjoining  this 
warehouse  was  sold,  and  the  defendant  built  a  store  upon  it, 
using  this  wall  for  one  side,  and  inserting  the  timbers  of  the 

1  Keteltas  v.  Penfolcl,  4  E.  D.  Smith,  122.  See  also  Weyman  v.  Ringold,  1 
Brad.  52,  61. 

2  Webster  v.  Stevens,  5  Duer,  553. 


544  TIffi   LAW   OF   EASEMENTS   AND   SERVITUDES.        [Ch.  IV, 

building  in  the  same.  The  plaintiff  then  called  on  him  to 
contribute  a  part  of  the  expense  of  the  wall.  But  the  court 
held,  that  if  the  original  wall  had  been  built  by  the  mutual 
agreement  and  at  the  joint  expense  of  the  proprietors  of  the 
two  lots,  each  would  have  continued  owner  of  the  land  on 
which  the  respective  parts  of  it  were  built,  and  of  course 
each  owned  one  half  of  the  wall  in  severalty.  But  neither 
would  have  had  a  right  to  pull  down  the  wall  without  the 
other's  consent,  and  to  that  extent  the  agreement  upon 
which  it  was  erected  controlled  the  exclusive  dominion 
which  each  would  otherwise  have  had  over  the  half  of  the 
wall,  as  well  as  over  the  soil  on  which  it  stood.  But  when 
the  wall  had  been  destroyed  by  the  elements,  there  being  no 
agreement  to  build  a  second  wall,  neither  was  under  obliga- 
tion to  join  with  the  other  in  doing  so,  and  the  law  would 
imply  no  such  obligation.  By  the  common  law,  every  man 
may  build  such  buildings  and  in  such  manner  as  he  pleases 
on  his  own  land,  nor  is  he  bound  to  give  his  ueighbor  any 

use  or  advantage  of  his  land  for  support,  drip,  or 
[*461]   by  the  way  *of  any  easement  whatever.     And  if  a 

stranger  enters  upon  his  unoccupied  land,  and  sees 
fit  to  make  erections  or  improvements  on  the  same,  he  is  not 
bound  to  make  compensation  therefor  upon  recovering  pos- 
session of  his  premises.  When,  therefore,  the  defendant  in 
this  case  made  use  of  a  wall  standing  on  his  own  land,  he 
was  not  thereby  made  chargeable  for  the  expense  of  con- 
structing the  same. 

There  is,  therefore,  a  marked  distinction  between  the  case 
of  Campbell  v.  Mesier  and  the  present,  inasmuch  as  in  the 
former  the  wall  was  a  common  one,  built  jointly,  or  presumed 
to  have  been  so  built,  by  both  parties,  whereas  in  the  present 
case,  though  built  upon  the  land  of  each  proprietor,  it  was 
built  wlioUy  at  the  expense  of  one,  and,  so  far  as  it  stood 
upon  the  other's  land,  it  was  built  without  right.^ 

1  Shurrcd  v.  Cisco,  4  Sandf.  480.  See  Orman  v.  Day,  5  Florid.  385,  392,  af- 
firming and  sustaining  Siierred  v.  Cisco,  upon  similar  facts.  See  Partridge  v. 
Gilbert,  15  N.  Y.  601. 


Sect  3.]  EASEMENT   OF   PARTY   WALLS.  545 

14.  The  case  of  Partridge  v.  Gilbert,  cited  above,  is 
deserving  attention,  as  one  of  the  judges  in  that  case,  Denio, 
took  occasion  to  refer  to  the  foregoing  cases  of  Campbell  v. 
Mesicr,  and  Sherred  v.  Cisco.  In  that  case,  the  two  build- 
ings, having  a  common  wall  between  them,  were  owned  and 
erected  by  the  same  person.  This  wall  rested  upon  the 
crown  of  an  arch,  beneath  which  was  a  passage-way,  the  legs 
of  the  arch  standing  one  on  one  estate  and  the  other  upon 
the  other,  the  centre  line  of  the  wall  being  the  dividing  line 
of  the  estates.  The  estates  came  by  conveyances  into  two 
persons'  hands,  the  centre  line  of  the  wall,  by  the  description 
in  the  deeds,  being  the  dividing  line  of  the  two.  The  build- 
ings were  occupied  as  stores,  one  in  the  possession  of  a 
tenant,  the  other  in  that  of  the  owner.  The  wall  being 
ruinous  and  unsafe,  the  owner  of  the  latter  store  notified 
the  tenant  of  the  other  store  of  his  intention  to  take  down 
and  rebuild  the  wall.  The  tenant  objected,  but  the  owner 
proceeded  to  do  so,  leaving  the  tenant's  store  exposed, 
and  for  this  and  the  injury  to  his  business  he  sued  the 
owner  of  the  other  store  who  had  taken  down  the 
*wall.  Two  of  the  judges  of  the  Court  of  Appeals  [*462] 
gave  opinions,  and  all  concurred  in  the  judgment. 
They  held  that,  the  wall  being  ruinous  and  unsafe,  the 
owner  of  the  adjoining  store  had  a  right  to  take  it  down 
and  rebuild  it,  and  he  might  take  it  all  down,  for  this  pur- 
pose, unless  he  could  make  it  safe  by  taking  down  and 
rebuilding  only  that  part  upon  his  own  land.  That  though 
each  party  owned  up  to  the  centre  line  of  the  wall,  each  had 
an  easement  of  support  of  his  building  upon  the  wall,  which 
passed  when  the  owner  conveyed  them  as  separate  estates, 
and  that  this  extended  to  the  support  of  the  legs  of  the  arch, 
which  stood  one  upon  each  parcel  of  the  estate.  Shankland, 
J.  approved  of  the  doctrine  of  Campbell  v.  Mesier,  that  in 
such  a  case  the  one  causing  the  necessary  repairs  or  restora- 
tion of  the  wall  might  have  a  remedy  for  contribution  against 
the  other  party.     And  that  the  owner  had  the  same  right  to 

35 


546      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  IV. 

rebuild  the  entire  wall  as  lie  had  to  repair  it,  if  necessary  to 
its  enjoyment.  Denio,  J.  held,  that  neither  party  could 
have  rightfully  done  anything,  though  upon  his  own  land, 
to  weaken  this  wall,  and  cites  Richards  v.  Rose.^  "  In  this 
case  we  hold  that  the  owner  of  the  building  occupied  by  the 
plaintiffs  was  entitled  to  have  it  supported  by  the  common 
wall,  while  that  wall  remained  in  a  condition  to  uphold  it. 
....  My  view  of  the  rights  of  these  parties  is  this.  Each 
had  a  title  to  the  soil,  to  the  division  lijie,  which  was  the 
centre  of  the  arch  and  wall,  but  this  title  was  qualified  by 
the  easement  which  each  owner  had  of  supporting  his  build- 
ing by  means  of  the  common  wall.  As  the  half  of  the  wall 
standing  on  the  land  of  the  owner  would  not  alone  afford  the 
requisite  support,  because  the  whole  of  the  arch  and  the  entire 
thickness  of  the  wall  was  required  for  that  purpose,  the  law 
gave  him  an  interest,  in  the  nature  of  an  easement,  in  the 

part  of  the  wall  standing  on  the  land  of  the  other 
[*463]   party.     This  right  existed  as  long  as  the  wall  *con- 

tinued  to  be  sufficient  for  that  purpose,  and  the 
respective  buildings  remained  in  a  condition  to  need  and  to 
enjoy  that  support." 

The  case  of  Dowling  v.  Hemmings  was,  in  many  respects, 
like  that  of  Partridge  v.  Gilbert.  The  dividing  wall  of  two 
houses  rested  upon  an  arch,  the  legs  of  which  rested  one 
upon  each  of  the  adjacent  lots.  It  was  held,  nevertheless, 
to  be  a  party  wall  with  all  the  rights  and  incidents  of  such  a 
wall,  after  it  had  stood  and  been  so  used  and  enjoyed  for 
twenty  years  or  more,  and  one  of  the  parties  having  removed 
the  leg  that  rested  upon  his  land,  the  wall  fell,  and  he  was 
held  liable  for  the  injury  thereby  caused  to  the  other  party.^ 
In  respect  to  the  rights  of  the  several  parties  to  rebuild 
the  wall  when  it  ceased  to  be  sufficient,  he  refers  to  the  cases 
of  Campbell  v.  Mesier,  and  Sherred  v.  Cisco,  in  the  latter  of 
which  it  was  held,  that,  if  the  buildings  were  destroyed  by 

1  Richards  v.  Rose,  9  Exch.  218.  ' 

2  Dowling  V.  llcmmings,  20  Md.  179. 


Sect.  3.]  EASEMENT    OF   PARTY   WALLS.  547 

fire,  the  parties  were  remitted  to  their  original,  unqualified 
title  to  the  division  line.  "  I  do  not  perceive  any  solid  dis- 
tinction between  a  total  destruction  of  the  wall  and  build- 
ings, and  a  state  of  things  which  would  require  the  whole  to 
be  rebuilt  from  tlie  foundation.  In  either  case,  there  is 
great  force  in  saying  that  the  mutual  easements  have  become 
inapplicable,  and  that  each  proprietor  may  build  as  he 
pleases  upon  his  own  land,  without  any  obligation  to  accom- 
modate the  other If  the  right  of  mutual   support 

continues,  by  means  of  the  original  arrangement,  or  by 
prescription,  it  is  for  just  such  an  easement  as  was  originally 
conceded,  or  which  has  been  established  by  long  enjoyment. 
But  in  the  changing  condition  of  our  cities  and  villages  it 
must  often  happen,  as  it  did  actually  happen  in  this  case, 
that  edifices  of  different  dimensions,  and  an  entirely  different 
character,  would  be  required.  And  it  might  happen,  too, 
that  the  views  of  one  of  the  proprietors  as  to  the  value  and 
extent  of  the  new  buildings  would  essentially  differ  from 
those  of  the  other,  and  the  'division  wall  which  would  suit 
one  of  them  would  be  inapplicable  to  the  objects  of  the  other. 
If  it  were  necessary  to  determine  this  point  in  this  case,  I 
should  be  strongly  inclined  to  adopt  the  views  of  the  late 
Judge  Sanford,  in  delivering  the  opinion  of  the  Superior 
Court  in  tlie  case  of  Sherred  v.  Cisco,  just  cited."  ^ 

The  doctrine  stated  in  the  above  case,  that  the  occupant 
of  the  store  who  was  injured  by  taking  down  and 
*rebuilding  the  party  wall  had  no  cause  of  action  [*464] 
thereby  against  the  other  proprietor,  is  in  accordance 
with  the  French  law,  as  stated  by  Pardessus.^ 

15.  So  far  as  the  above  cases  sustain  the  doctrine  that  if 
two  parties  build  a  common  wall  between  them,  and  erect 
houses  on  each  side  of  the  same,  although  each  may  be  the 
owner  of  his  half  thereof  in  severalty,  each  has  the  easement 
of  support  by  such  wall  so  long  as  it  stands,  which  the  other 

1  Partridge  v.  Gilbert,  1.5  N.  Y.  601. 

'^  Pardessus,  Traite  des  Servitudes,  251,  ed.  1829. 


548  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

may  not  weaken  or  destroy,  it  is  confirmed  by  the  case  of 
Brown  v.  Windsor,  althongh  a  cursory  reading  of  that  case 
might  lead  to  an  impression  that  one  may  acquire  an  ease- 
ment in  another's  land  by  parol,  under  certain  circum- 
stances.^ 

16.  In  addition  to  the  foregoing  cases,  reference  may  be 
had  to  those  cited  below,  as  bearing  upon  the  remedy  which 
one  owner  of  a  party  wall  may  have  against  the  other  for  an 
injury  done  to  the  same,  or  for  recompense  for  expenses 
incurred  in  repairing  the  same,  which  are  here  alluded  to, 
though  not  perhaps  forming  a  part  of  the  proper  subject  of 
easements.^ 

The  case  of  Burlock  v.  Peck  may  be  referred  to  also  for 
another  purpose,  as  illustrating  the  effect  of  an  agreement 
in  respect  to  party  walls  upon  the  successive  owners  of  the 
respective  estates.  Peck  owned  two  adjoining  city  lots,  69 
and  71,  and  sold  to  H.  the  former,  who  was  to  have  "  the 
privilege  of  building  a  party  wall  twelve  inches  thick,  ex- 
tending six  inches  on  each  side  of  the  line,"  the  grantor 
in  the  deed  agreeing  to  pay  for  said  wall  when  used.  H. 
erected  a  house  on  69,  and  constructed  the  wall  as  above 
provided.  H.  sold  to  plaintiff's  intestate.  After  this  Peck 
sold  71  to  the  same  H.,  who  erected  a  house  upon  it,  and  us.ed 

this  party  wall ;  and  the  administrator  of  the  gran- 
[*465]   tee  of  lot  69  brought  an  action  to  recover  the  *cost 

of  half  this  wall  against  the  administrator  of  Peck. 
The  court  held  that  by  H.'s  deed  of  Lot  69,  the  whole  of  the 
party  wall  passed,  although  six  inches  of  it  stood  upon  71, 
the  whole  property  in  it  was  in  him.  When  H.  built  upon 
71,  he  appropriated,  as  he  had  a  right  to  do,  the  wall  to  his 
use,  and  thereby  gave  the  proprietor  of  No.  69  a  right  to 
recover  for  one  half  the  cost  of  it  under  the  covenant  of 
Peck,  as  one  running  with  the  land. 

17.  Connected  also  with  the  subject  of  remedy  of  one  of 

1  Brown  v.  Windsor,  1  Crompt.  &  J.  20  ;  Dowling  v.  Hcmminp;s,  20  Md.  179. 

2  Burlock  V.  Peck,  2  Duer,  90;  Murley  v.  M'Dcrmott,  8  Adolph.  &  E.  138. 


Sect.  3.]  EASEMENT   OF   PARTY   WALLS.  649 

two  owners  of  party  walls  against  the  other  for  acts  injuri- 
ously affecting  the  same,  may  be  cited  the  case  of  Phillips 
V.  Boardman,  which,  related  to  two  estates  adjoining  each 
other,  upon  Washington  Street,  in  Boston,  between  which 
there  was  an  ancient  party  wall  twelve  inches  thick,  used  for 
supporting  the  timbers  of  the  respective  houses.  The  owner 
of  one  having  taken  down  his,  and  being  about  to  erect  a 
new  building  on  the  site  of  the  old  one,  pared  off  four  inches 
from  the  old  wall  with  a  view  to  erect  a  new  wall  distinct 
from  the  old  one,  twelve  inches  in  thickness,  occupying  eight 
inches  upon  his  own  land,  and  the  four  inches  of  the  old 
wall  thus  pared  off.  He  had  begun  to  erect  such  wall,  oc- 
casionally extending  his  bricks  two  inches  beyond  the  same, 
so  as  to  extend  to  the  centre  of  the  old  wall,  partly  to  aid  in 
the  support  of  the  new  and  partly  to  indicate  the  extent  of 
the  limits  of  his  line,  and  to  prevent  the  owner  of  the  re- 
mainder of  the  wall,  if  he  took  it  down,  ever  joining  it  upon 
his  new  wall.  The  adjacent  owner  applied  for  an  injunction 
to  his  erecting  such  wall.  It  was  shown  that  the  wall  was 
an  ancient  one,  sufficient  for  such  buildings  as  stood  upon 
the  street,  and  that  paring  off  four  inches  would  essen- 
tially impair  its  strength,  and  that  the  new  wall  would  not 
afford  any  material  aid  or  strength  to  the  old  one.  The 
court  granted  the  injunction,  because  it  being  an  ancient 
party  wall,  both  parties  were  jointly  interested  in  it,  and 
neither  of  them  can  so  deal  with  it  as  to  diminish 
its  capacity  for  service,  *  without  the  consent  of  the  [*466J 
other ;  and  if  such  new  wall  were  enjoyed  for  twenty 
years,  the  right  to  enjoy  the  whole  wall  as  a  party  one  would 
be  lost  to  the  complainant.^ 

18.  There  were  rules  in  the  civil  law,  as  there  are  in  the 
French  code,  the  statutes  of  England,  and  in  Pennsylvania, 
regulating  the  rights  of  parties  in  respect  to  party  walls  be- 
tween their  estates,  and  the  remedies  to  which  either  may 
resort  for  compensation  for  their  erection  or  repair,  or  for 

1  Phillips  V.  Boardman,  4  Allen,  147. 


550  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

injury  done  them.  But  these  partake  so  much  of  a  strictly 
local  character,  that,  with  the  exception  of  the  system  in 
force  in  France,  they  are  purposely  omitted  here.^ 

The  rule  of  the  civil  law,  whereby  one  may  acquire  by 
grant  or  prescription  the  right  of  having  the  beams  of  his 
house  rest  upon  the  wall  of  another  house,  though  such  wall 
is  wholly  built  upon  the  land  of  the  owner  of  the  wall,  has 
already  been  mentioned,  and,  as  it  would  seem,  the  same 
easement  may  be  gained  at  common  law  by  long  enjoy- 
ment.^ 

19.  The  cases,  both  in  the  English  and  American  courts, 
have  been  so  few  in  which  the  rights  of  parties  in  respect  to 
party  walls  have  been  considered,  that  I  have  been  induced 
by  the  importance  of  the  subject  to  depart  from  the  general 
rule  adopted  in  reference  to  this  work,  and  borrow  somewhat 
freely  from  the  French  law,  as  throwing  light  upon  some 
points  not  yet  adjudicated  upon  by  the  common-law  courts. 
But  it  should  be  remembered  that,  while,  both  by  the  civil 
and  common  law,  if  a  structure  becomes  one  answering  to 
tlie  character  of  a  party  wall,  it  must  be  made  so  by 
[*467]  the  *  agreement,  actual  or  presumed,  of  the  parties 
to  that  effect ;  in  France  such  agreement  is  not 
requisite.  On  the  contrary,  if  one  build  the  wall  of  his  house 
upon  the  verge  of  his  land,  and  his  neighbor  has  occasion  to 
build  a  house  adjoining  it,  he  may  make  use  of  this  wall  for 
the  purpose,  if  of  suitable  dimensions,  by  reimbursing  to  the 
owner  a  fair  ratable  proportion  of  the  value  thereof,  and  of 
the  land  it  occupies,  so  far  as  he  uses  the  same.  This  is  so 
in  the  cities,  and  is  a  rule  based  upon  what  is  supposed  to  be 
a  wise  public  policy.     Nor  will  the  age  of  the  wall  make  any 

1  Code  Nap.,  Arts.  6.55  -  661 ;  Ayl.  Pand.  309  ;  Sherred  v.  Cisco,  4  Sandf.  4S0^ 
491  ;  Dunlop,  Laws  of  Penn.  ed.  1847,  c.  31,  p.  39,  Act  of  1721  ;  Purdon's  Dig. 
984,  985  ;  Building  Acts,  7  &  8  Vict.  c.  84,  §§  20-27.  See  Woolr.  Party  Walls, 
passim ;  Evans  v.  Jane,  23  Penn.  St.  34  ;  Davids  v.  Harris,  9  Penn.  St.  501.  See 
3  Kent,  Comm.  438,  note ;  post,  sect.  19 ;  La.  Civ.  Code,  Art.  671  ;  Graihle  v. 
liown,  1  La.  Ann.  140.     See  as  to  Iowa,  3  Clark,  391. 

-  Ayl.  Pand.  309  ;  D.  8,  2,  36  ;  Ibid.  8,  5,  14  ;  3  Kent,  Comm.  437 ;  3  Burge, 
Col.  &  F.  Law,  402 ;  Ersk.  Inst.  B.  2,  tit.  9,  §  8. 


Sect.  3.]  EASEMENT   OF   PARTY  WALLS.  551 

difference,  since  prescription  docs  not  accrue  against  this 
right.  The  converse  of  the  proposition,  however,  is  not 
true,  since  the  owner  of  the  wall  cannot  compel  the  adja- 
cent owner  of  land  to  become  a  joint  owner  in  the  struc- 
ture.^ 

The  proposition  is  broadly  laid  down  in  the  Digest,  that, 
where  there  is  a  party  wall  between  two  adjoining  estates, 
neither  party  has  a  right  to  demolish  or  rebuild  it  at  his 
pleasure,  because  he  is  not  the  sole  owner  or  master  of  the 
structure.^ 

And  whenever  a  house  or  estate  is  sold,  whatever  service 
belongs  to  it  belongs  to  the  alienee.^ 

In  France,  party  walls,  murs  mitoyens,  take  their  name 
from  the  combination  of  moi  and  toi,  and  include  walls  en- 
closing gardens  and  the  like  in  cities  and  villages,  as  well  as 
those  between  adjoining  houses.* 

In  the  erection  of  such  walls,  they  should  rest  in  equal 
parts  upon  the  land  of  each  owner,  and  there  are  sundry 
rules  laid  down  in  the  Code  and  writers  upon  the  subject  for 
determining  what  walls  come  within  this  category.^ 

TouUier,  in  his  Droit  Civil  Franqais,  draws  a  plain 
*distinction  between  a  party  wall,  mur  mitopen,  and  [*468] 
one  in  common,  mur  commun.  In  the  latter,  each 
party  owns  in  each  and  every  part  of  the  wall,  and  neither 
can  designate  the  part  that  belongs  to  him.  Whereas,  in  the 
other,  though  constructed  at  a  common  expense,  it  stands 
upon  land  of  which  there  is  a  several  ownership,  and  the 
part  that  belongs  to  each  may  be  defined  by  the  line  sepa- 
rating their  lands.  Nevertheless,  as  both  parts  are  insepara- 
ble by  the  nature  of  their  use,  and  form  a  seemingly  entire 
thing,  the  wall  in  general  terms  is  said  to  be  common  between 
the  two  neighbors.^ 

1  5  Duranton,  Cours  de  Droit,  Fran9ai,s,  342 ;  3  Toullier,  Droit  Civil  Fran- 
^ais,  134,  136;  Inst.  2,  3,  4. 

-  D.  8,  2,  8.  3  J)   8,  4,  12. 

*  Pardessus,  Traite  des  Servitudes,  cd.  1829,  217,  219,  221,  237. 
s  Ibid.  222,  238,  239,  242  ;  Code  Nap.,  Art.  654. 
6  3  Toullier,  Droit  Civil  Franfais,  ed.  1824,  126. 


552  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

Where  a  wall  is  party  by  agreement  of  the  proprietors, 
their  respective  liabilities  in  regard  to  the  same  are  regulated 
by  the  terms  of  their  agreement.  But,  if  no  such  agreement 
appears,  the  law  presumes  their  rights  and  liabilities  to  be 
equal.  This  co-proprietorship  creates,  between  those  to 
whom  it  belongs,  the  same  obligation  as  the  law  imposes 
upon  all  joint  owners  of  property.  Each  is  bound  to  watch 
over  its  safety  and  preservation  with  the  same  diligence  as  if 
the  wall  belonged  to  himself  alone,  and,  moreover,  he  should 
personally  avoid  doing  anything  to  damage  or  impair  it. 
And  each  proprietor  has  a  right  of  action  against  the  other, 
to  compel  him  to  repair  in  whatever  respect  he  may  have 
wasted  or  impaired  it.^ 

Tlie  Code  Napoleon  ^  provides,  that  the  repairs  and  rebuild- 
ing of  party  walls  are  at  the  charge  of  all  those  who  have  a 
right  in  them,  and  in  proportion  to  the  right  of  each.  This 
applies  to  cases  where  the  wall  is  out  of  repair  by  reason  of 
age  or  accident,  which  is  not  caused  by  the  default  of  one  of 

the  proprietors.  But  it  is  not  necessary  that  it 
[*469]   *should  be  in  ruins  in  order  that  one  co-proprietor 

may  compel  another  to  join  in  its  repair  or  recon- 
struction. It  is  enough  that  such  repairs  are  apparently 
necessary  ;  and  if  the  parties  do  not  agree  upon  the  point  of 
the  repair  being  necessary,  it  becomes  a  question  to  be  sub- 
mitted to  the  judgment  of  experts,  in  a  mode  provided  by 
law.  Sometimes  it  is  only  necessary  to  reconstruct  the  wall 
partially,  as  where  it  leans  from  a  perpendicular,  or  its 
materials  are  found  to  want  sufficient  cement  or  solidity 
in  the  upper  part  of  it  alone.  In  such  cases  a  total  re- 
construction ought  not  to  be  required,  and  should  only 
extend  so  far  as  the  same  is  necessary.  If  the  defect  be  in 
the  lower  part  of  the  wall,  it  should  be  supplied  by  newly 
underpinning  it. 

1  Pardessus,  Traite  dcs  Servitudes,  248  ;  3  Toullier,  Droit  Civil  FraiKjais, 
128,  147. 

2  Code  Nivp.,  Art.  655  ;  Pardessus,  Traite?  des  Servitudes,  249,  250,  251  ; 
5  Duranton  Cours  de  Droit  Franvais,  327,  328,  370,  371  ;  3  Toullier,  Droit 
Civil  Franrais,  145,  147,  148. 


Sect.  3.]  EASEMENT   OF   PARTY   WALLS.  553 

In  doing  these,  each  proprietor  should  share  equally  in  the 
inconveniences  arising  from  the  passage  of  the  workman  and 
the  placing  of  their  materials  while  doing  the  work,  as  well 
as  in  the  expenses  thereby  occasioned.  But,  so  far  as  it  is 
necessary  to  remove  anything,  or  place  props  and  supports 
while  executing  the  work,  each  party  is  to  bear  whatever 
part  of  this  may  particularly  concern  himself;  and  if  either 
party  has  paintings  or  other  ornaments  upon  his  side  of  the 
wall  which  arc  thereby  injured,  he  alone  is  to  bear  the  loss, 
since  he  has  to  ascribe  to  his  own  imprudence  the  placing  of 
ornaments  upon  a  wall  which  the  law  has  made  a  party  one, 
and  subject  to  be  rebuilt. 

So  if  one  has  a  place  of  public  amusement  adjoining  such 
wall,  to  which  the  public  resort,  and  the  same  is  a  source  of 
profit  to  him,  and  during  the  progress  of  such  reconstruction 
he  is  deprived  of  this  source  of  profit,  he  is  without  recom- 
pense or  indemnity.  It  is  one  of  the  inconveniences  inci- 
dent to  the  nature  of  the  property. 

A  different  rule  would  be  applied  if  the  wall  were  taken 
down  in  order  to  favor  a  private  enterprise  of  one  of  the  pro- 
prietors. He  must  not  only  incur  the  whole  expense  of  the 
work  and  its  reconstruction,  but  must  pay  to  his  co-proprie- 
tor the  damages  thereby  occasioned  to  him.  If  it  is 
not  *of  sufficient  thickness  or  of  suitable  material  to  [*470] 
serve  the  purposes  for  which  it  was  erected,  the  ex- 
pense of  making  it  such  and  supplying  the  materials  is  a 
charge  upon  both  parties.  But,  if  it  is  made  higher  or 
thicker  for  the  accommodation  of  one  only  of  the  proprie- 
tors, he  must  sustain  the  whole  expense  of  this  change.^ 

Either  proprietor  may  raise  the  wall  if  he  has  occasion, 
though  the  other  has  not,  provided  it  be  of  sufficient  width 
and  strength  to  sustain  the  addition.  But,  if  it  is  not,  the 
one  desiring  to  raise  it  must  make  it  competent  and  safe  for 
such  increase  at  his  own  expense,  unless  the  wall  at  the  time 

1  Pardessus,  Traite  des  Servitudes,  251,  252  ;  3  Toullier,  Droit  Civil  Franc;ais, 
144  ;  Evans  v.  Jayne,  23  Penn.  St.  36  ;  3  Kent,  Coram.  437. 


654  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

be  ill  such  a  condition  as  requires  a  present  reconstruction. 
In  the  latter  contingency  the  other  proprietor  may  be  held 
to  contribute  towards  its  reconstruction  so  far  as  to  render  it 
suitable  for  the  purposes  for  which  it  was  originally  erected, 
if  no  increase  were  to  be  made  in  its  height.  If  cither  wishes 
the  wall  to  be  made  wider  than  its  original  thickness,  he 
must  make  use  of  his  own  land  for  the  purpose.  But 
though  thus  widened,  it  still  remains  an  entire  party  wall. 

But  unless  such  entire  reconstruction  be  necessary,  neither 
proprietor  can  cause  it  to  be  made  against  the  consent  of  the 
other,  even  at  his  own  expense,  since  such  an  operation  al- 
ways brings  with  it  great  inconvenience  to  the  other  party, 
for  which  he  can  recover  no  recompense.^ 

A  like  rule  prevails  in  respect  to  building  the  wall  deeper 
as  in  raising  it  higher.  Either  may  do  it,  if  he  have  occa- 
sion, by  using  like  precautions  in  constructing  the  under- 
work of  the  wall  not  to  injure  his  neighbor.  He  must  so 
dig  and  build  the  under  part  of  the  wall,  in  respect  to  its 
solidity  and  strength,  that  the  common  wall  above  it  shall 
not  be  endangered  thereby  ;  nor  can  he  call  upon 
[*471]  the  other  *party  for  indemnity  for  the  expense  of 
supporting  the  part  which  he  has  thus  constructed. 
The  part  thus  added  belongs  to  him,  and  is  to  be  repaired 
by  him  at  his  own  sole  expense.^ 

So  far  as  either  proprietor  shall  raise  the  wall  above  its 
original  height,  it  will  be  for  him  to  keep  it  in  repair,  at  his 
own  proper  charge,  unless  the  other  party  shall  see  fit  to  use 
it  for  the  support  of  a  building  on  his  side.  In  that  event 
it  all  becomes  a  party  wall,  and  the  latter  must  pay  his  share 
of  its  cost,  together  with  that  of  the  value  of  the  land  occu- 
pied, if  it  shall  have  been  also  widened,  calculated  upon  cer- 
tain prescribed  principles  of  computation. 

1  Code  Nap.,  Art.  G59 ;  Pardessus,  Traite  des  Servitudes,  262,  263,  264 ;  5 
Duranton,  Cours  de  Droit  Fran^ais,  368,  369 ;  3  TouUicr,  Droit  Civil  Fran9ai,s, 
140, 142. 

2  Pardessus,  Traite  des  Servitudes,  265 ;  3  Toullier,  Droit  Civil  Fran^ais,  135. 


Sect.  3.]  EASEMENT   OF   PARTY   WALLS.  555 

The  law  also  provides  for  settling  questions  between  the 
parties,  if  the  owner  of  the  wall  shall  undertake  to  object 
to  the  adjacent  owner  availing  himself  of  the  benefit  of  it. 
And  also  for  the  judgment  of  experts,  as  to  the  mode  and 
extent  to  which  the  owners  upon  one  side  and  the  other 
of  party  walls  may  use  them  in  case  of  disputes  between 
them.i 

When  a  party  wall  between  two  houses  has  been  rebuilt, 
all  the  servitudes  belonging  to  the  former  one  revive  and 
continue  in  respect  to  the  new  wall  or  new  house.^ 

Each  proprietor  may  use  the  wall  for  the  purposes  for 
which  it  was  erected  and  designed  by  the  nature  of  its  con- 
struction. This,  however,  is  limited  in  its  degree  by  what 
shall  be  for  the  interest  of  the  other  proprietor,  so  as  not  to 
deprive  him  of  his  equal  rights.  It  is  in  a  measure  regu- 
lated by  the  Code,  Art.  662,  which  prohibits  either  from 
making  any  recess  in  a  party  wall.  And  Pardessus  consid- 
ers this  as  preventing  the  construction  of  a  safe,  a 
niche,  *  a  pipe,  or  a  chimney  flue  in  such  a  wall.  [*472] 
But  it  does  not  prohibit  making  openings  into  the 
wall  for  supporting  beams  and  joists,  and  the  depth  to  which 
this  may  be  done  is  fixed  by  law.  So  stones  or  bars  of  iron 
intended  for  strengthening  or  supporting  the  wall  may  be 
inserted  into  it.-^ 

Either  of  the  co-proprietors  of  a  party  wall  may  at  any 
time  discharge  himself  from  liability  to  repair  or  rebuild  it, 
provided  he  has  not  any  building  resting  upon  or  supported 
by  such  wall,  if  he  will  abandon  his  right  of  property  in  the 
use  of  the  same,  and  of  the  land  on  which  it  stands.  It  is 
not  enough  that  he  abandons  the  wall,  he  must  abandon  the 

1  Code  Nap.,  Arts.  660,  662  ;  Pardessus,  Traite'  des  Servitudes,  266,  267,  268  ; 
5  Duranton,  Cours  de  Droit  Fran^als,  377,  379 ;  3  Toullier,  Droit  Civil  Fraa- 
9ais,  140,  142. 

2  5  Duranton,  Cours  de  Droit  Fran^ais,  382  ;  3  Toullier,  Droit  Civil  Fran^ais, 
522, 

8  Pardessus,  Traitd  des  Servitudes,  256,  257,  258  ;  5  Duranton,  Cours  de  Droit 
Fran9ais,  3G7,  379  ;  3  Toullier,  Droit  Civil  Franyais,  138. 


556       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  IV. 

land  also.i  But  he  will  not,  by  such  abandonment,  exoner- 
ate himself  from  responsibility  on  account  of  acts  which  he 
or  those  in  his  employ  may  have  previously  done  to  the  wall. 
This  is  provided  for  by  the  Code,  Art.  656,  which  is  in  these 
words :  "  Every  joint  owner  of  a  party  wall  may  exempt 
himself  from  contributing  to  its  reparation  and  rebuilding 
by  abandoning  his  right  of  partyship,  provided  such  party 
wall  does  not  support  any  building  belonging  to  him." 

On  the  other  hand,  the  proprietor  to  whom  the  abandon- 
ment is  made  shall  not  be  at  liberty  to  suffer  the  wall  to  go 
to  ruin  in  order  to  enjoy  the  benefit  of  the  land  and  the  ma- 
terials of  the  wall,  half  of  which  still  belong  to  the  other 
proprietor.  The  consequence  is,  that,  if  he  abandon  the 
use  of  the  wall  as  a  structure,  the  former  co-proprietor 
may  reclaim  his  land  and  his  share  of  the  materials  of  the 
wall. 2 

If  one  proprietor  suffers  the  other  to  exercise  exclusive 
control  over  the  wall,  as  sole  owner  thereof,  for  thirty  years, 
it  will  lose  the  character  of  a  party  wall  by  prescription.^ 

20.  The  principle  upon  which  the  laws  of  Penn- 
[*47o]  sylvania,  *  in  respect  to  party  walls  in  the  city  of 
Philadelphia,  are  based,  is  so  nearly  in  accordance 
with  the  doctrine  of  the  French  law  above  stated,  that  it  is 
referred  to  again  for  purposes  of  illustration.  The  statute 
provides  for  party  walls  between  two  estates  being  set  out 
and  regulated  as  to  their  thickness  by  surveyors,  and  that 
the  foundations  of  these  shall  be  laid  equally  upon  the  lands 
of  the  persons  between  whom  such  party  wall  is  made  ;  "  and 
the  first  builders  shall  be  reimbursed  one  moiety  of  the 
charge  of  such  party  wall,  or  for  so  much  thereof  as  the 
next  builder  shall  have  occasion  to  make  use  of,  before  such 
next  builder  shall  any  ways  use  or  break  into  the  said  wall, 
the  charge  or  value  thereof  to  be  set  by  the  said  regulators." 

1  Le  Page  Desf,'0(Jets,  56,  .57. 

2  Pardessus,  Trailo  des    Servitudes,  2,'')3,  254,  255  ;  5  Duranton,  Cours,  &c., 
328,  .341  ;  3  Toullier,  Droit,  &c.,  149,  150,  151. 

^  Merlin,  Repertoire  dc  Jurisprudence,  tit.  Mitoyennete. 


Sect.  3.]!  EASEMENT   OF   PARTY   WALLS.    .  557 

• 

Provision  is  also  made  for  having  a  survey  made  of  any  party 
wall  against  which  one  is  about  to  build,  to  determine  as  to 
its  sufliciency,  with  authority  on  the  part  of  the  regulators 
to  direct  the  removal  of  any  such  wall  if  insufficient,  and  to 
regulate  the  width  of  the  same,  and  no  such  wall  may  be 
less  than  nine  inches  in  thickness. 

A  question  arose  under  this  law,  in  which  Evans  and 
Watson,  having  a  party  wall  between  their  estate  and  that 
of  Jayne,  who  was  about  to  erect  a  store  adjoining  it, 
were  notified  to  remove  it  by  the  regulators  because  of  its 
insufficiency.  From  this  order  they  appealed.  The  court 
say :  "  There  can  be  no  available  objection  to  the  principle 
upon  which  our  law  as  to  party  walls  is  based.  The  law  as 
to  partition  fences  involves  the  same  principle.  It  has  con- 
stituted part  of  the  law  of  France  for  ages,  and  is  fully  car- 
ried out  in  the  Code  Napoleon."  The  court  then  cite  Ar- 
ticle 659 :  "  The  principle  is  no  invasion  of  the  absolute 
right  of  property,  for  that  absolute  involves  a  relative,  in 
that  it  implies  the  right  of  each  adjoiner,  as  against  the 
other,  to  insist  on  a  separation  by  a  boundary  more  substan- 
tial than  a  mathematical  line.  This  imaginary  line  is  com- 
mon, and  so  ought  the  real  one  to  be,  and  it  is  only  in  the 
character  of  this  that  the  difficulty  lies  which  requires 
*legislation.  And  there  is  nothing  more  severe  in  [*474] 
submitting  the  question  of  the  sufficiency  of  walls  in 
a  city  to  the  city  surveyor,  than  there  is  submitting  the  suffi- 
ciency of  fences  in  the  country  to  fence-viewers."  And  the 
appeal  was  accordingly  disallowed.^  They  have  in  Iowa  a 
law  similar  to  that  of  Philadelphia,  by  which  one  of  two  ad- 
jacent owners  is  at  liberty  to  place  half  the  wall  of  his  house 
upon  the  land  of  the  adjacent  owner,  and  when  the  latter 
comes  to  build  upon  his  lot,  he  may  use  this  as  a  party  wall 
for  supporting  the  timbers,  &c.,  of  his  house,  upon  paying 
one  half  the  value  of  the  wall.^ 

1  Purdon,  Di";.  634,  §  2,  11,  15  ;  Evans  v.  Jayne,  23  Penn.  St.  34 ;  Ingles  v. 
Bringhurst,  1  DalL  341  ;  2  Bouv.  Inst.  178. 

2  Zugenbuhler  v.  Gillim,  3  Iowa,  392. 


558  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

SECTION    IV. 

EASEMENT    OF   SUPPORT    OF   SUBJACENT    LAND. 

1.  Two  freeholds  in  case  of  mines,  surface  and  subjacent. 

2.  Right  of  support  of  upper  freehold,  one  of  property. 

•3.  Analogy  between  support  of  adjacent  and  subjacent  land. 

4.  Humphries  v.  Brogden.     How  mines  must  be  worked. 

5.  Harris  v.  Ryding.     What  rights  reserved  with  mines. 

6.  Where  cause  of  action  begins  for  impairing  support. 

7.  Rowbotham  v.  Wilson.     Effect  of  reserve  of  mines  on  support. 

8.  Support  of  houses  gained  by  prescription  against  mines. 

9.  Rule  as  to  surface  support  applies  to  public  works. 

1.  There  remains  to  be  considered,  as  coming  properly 
in  connection  with  the  doctrine  of  the  support  laterally  of 
the  soil  or  buildings  of  one  man  by  those  of  another,  how 
far  the  owner  of  the  surface  soil  of  the  earth  has  a  right  to 
insist  upon  a  support  from  beneath  of  his  soil  or  buildings, 
as  against  excavations  by  the  owner  of  the  minerals  below 
it  in  extracting  the  same.  Numerous  cases  have  arisen, 
of  late,  in  the  English  courts,  where  such  excavations  have 
caused  the  surface  of  the  earth  to  subside,  and  in  some  cases 
causing  injury  or  destruction  to  buildings  standing  thereon. 

These  questions  have  arisen  from  what  is  now  familiar 
law,  that  there  may  be  two  freeholds  in  the  same  body  of 
earth  measured  superficially  and  perpendicularly  down  to- 
wards the  centre  of  the  earth,  to  which,  theoretically,  the 

unlimited  ownership  of  the  soil  extends,  viz.  a  free- 
[*475]  hold  in  *the  superficial  soil,  and  enough  of  that  lying 

beneath  it  to  support  it,  and  a  freehold  in  the  mines 
underneath  this,  with  a  right  of  access  to  work  the  same,  and 
extract  the  minerals  there  found. ^ 

2.  To  this  extent,  the  right  of  having  the  soil  supported 
from  below  is  a  natural  one,  or,  more  properly,  an  incident 
to  the  ownership  of  the  soil.^     And  in  some  cases  the  owner 

1  Wilkinson  v.  Proud,  11  Mecs.  &  W.  33  ;  Eowbotham  v.  Wilson,  8  Ellis  &B. 
123,  142  ;  Zinc  Co.  v.  Franklinite  Co.,  13  N.  J.  341,  342. 
'-'  Rowbotham  v.  Wilson,  8  Ellis  &  B.  123,  152. 


Sect.  4.]     EASEMENT   OF   SUPPORT   OF   SUBJACENT   LAND.  559 

of  sucli  soil  has  a  right  of  easement  of  support  of  buildings  or 
other  structures  creating  additional  burdens  thcrQon.  Some 
of  the  cases  involving  these  questions  will  be  found  below, 
and  are  referred  to  for  purposes  of  illustration  of  the  rules 
applicable  in  such  cases. 

3.  It  will  be  found  that  much  aid  may  be  derived  in 
settling  questions  of  the  right  of  support  against  excavations 
for  mining  purposes  from  their  analogy  with  the  rules  al- 
ready stated  in  respect  to  the  right  of  lateral  support  of  soil 
and  buildings.^ 

4.  The  case  of  Humphries  v.  Brogden,  decided  in  1850, 
has  become  a  leading  one  upon  this  subject.  It  was  for  an 
injury  to  the  plaintiff's  soil  by  the  defendants  so  working 
their  mine  beneath  it  as  to  cause  it  to  settle  and  sink  down. 
It  was  not  found  that  the  defendants  had  worked  their  mines 
carelessly,  but,  on  the  contrary,  had  done  so  carefully,  ac- 
cording to  the  custom  of  the  country.  But  they  had  failed 
to  leave  sufficient  pillars  and  props  to  prevent  the  plaintiff's 
land  from  settling. 

The  Chief  Justice,  Campbell,  refers  to  the  cases  above 
mentioned,  relating  to  the  lateral  support  of  the  soil  of  one 
man  by  that  of  another,  and  says:  '■^Pari  ratione,  where 
there  are  separate  freeholds,  from  the  surface  of  the  land  and 
the  minerals  belonging  to  different  owners,  we  are  of  opin- 
ion that  the  owner  of  the  surface,  while  unencum- 
*bered  by  buildings,  and  in  its  natural  state,  is  en-  [*476] 
titled  to  have  it  supported  by  the  subjacent  mineral 
strata.  Those  strata  may  of  course  be  removed  by  the 
owner  of  them,  so  that  a  sufficient  support  for  the  surface  is 
left.  But  if  the  surface  subsides,  and  is  injured  by  the  re- 
moval of  these  strata,  although,  on  the  supposition  tbat  the 
surface  and  the  minerals  belong  to  the  same  owner,  the 
operation  may  not  have  been  conducted  negligently,  nor  con- 
trary to  the  custom  of  the  country,  the  owner  of  the  surface 
may  maintain  an  action  against  the  owner  of  the  minerals 

1  See  ante,  sect.  1. 


560  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

for  the  damage  sustained  by  the  subsidence."  He  refers  to 
the  case  of  Harris  v.  Ryding,^  and  adds  :  "  It  seems  to  have 
been  the  unanimous  opinion  of  the  court,  that  there  existed 
the  natural  easement  of  support  for  the  upper  soil  from  the 
soil  beneath."  It  was  held  that  the  plaintiff  was  entitled  to 
recover. 

5.  The  case  of  Harris  v.  Ryding  was  decided  in  1839.  In 
that,  the  grantor  of  the  mines  sold  the  surface  to  the  person 
under  whom  the  plaintiff  claimed,  and  in  his  deed  reserved 
the  mines  with  liberty  to  get  them.  Lord  Abinger,  C.  B. 
says,  that,  if  the  owner  had  granted  the  surface,  reserving 
the  mines  merely,  he  would  have  had  no  access  through 
the  surface,  but  must  have  reached  them  through  other 
adits.  And  when  he  reserved  the  right  of  access,  he  did  not 
thereby  reserve  the  right  to  dig  so  as  to  destroy  the  surface, 
or  to  do  anything  in  a  manner  unusual  and  improper,  so  as 
to  prejudice  the  surface  of  the  land.  And  as  the  case  found 
that  the  defendant  did  not  have  sufficient  support  for  the 
surface,  the  Chief  Baron  held  that  he  was  liable  for  the  dam- 
age thereby  occasioned.     There  were  buildings,  in  this  case, 

standing  upon  the  surface,  and  one  count  in  the 
[*477]   declaration  was  for  injury  to  these.      But  *the  case 

turned  wholly  upon  the  point,  in  which  all  the  court 
agreed,  that,  inasmuch  as  the  defendants  so  worked  their 
mines  as  not  to  leave  a  reasonable  support  for  the  surface, 
they  were  liable  for  the  damages  thereby  occasioned.^ 

6.  "Where  there  has  been  a  wrongful  act  of  withdrawing 
the  surface  support  by  improper  excavations  for  minerals, 
the  surface  owner  is  not  obliged  to  wait  until  his  land  or 

1  Humphries  v.  Brogden,  12  Q.  B.  739;  Harris  v.  Ryding,  5  Mees.  &  "W.  60. 
See  Smart  v.  Morton,  5  Ellis  &  B.  30  5  per  Crowder,  J.,  Kowbotham  v.  Wilson, 
8  Ellis  &  B.  154;  per  Coleridge,  J.,  Bonomi  v.  Backhouse,  Ellis,  B.  &  E.  622, 
639  ;  Roberts  v.  Haines,  6  Ellis  &  B.  643 ;  s.  c,  7  Ellis  &  B.  625.  See  Dugdale 
V.  Robertson,  3  Kay  &  John.  699. 

^  See  Smart  v.  Morton,  5  Ellis  «&  B.  30,  46,  confirming  the  doctrine  of  the 
above  cases.  Rowbolham  c.  Wilson,  6  Ellis  &.  B  593,  602 ;  Zinc  Co.  v.  Frauk- 
linite  Co.  13  N.  J.  342. 


Sect.  4.]      EASEMENT   OF   SUPPORT   OF   SUBJACENT   LAND.  5G1 

buildings  shall  have  actually  cracked  or  subsided.  Tlie  act 
is  a  violation  of  his  right,  and  he  may,  in  an  action  therefor, 
recover  full  compensation,  including  the  probable  damage  to 
the  fabric,  and  the  Statute  of  Limitations  begins  to  run  from 
the  time  of  such  act  done.^ 

7.  In  Rowbotham  v.  Wilson,  Campbell,  C.  J.  held,  that 
though,  in  the  absence  of  an  express  grant  to  that  effect,  the 
owiier  of  minerals  has  no  right  so  to  work  his  mines  as  to 
withdraw  the  reasonable  support  re(i[uired  for  the  surface, 
yet  the  owner  of  both  may  so  grant  the  surface  as  to  secure 
to  the  owner  of  the  mines  a  right  to  excavate  the  same, 
though  by  so  doing  he  do  not  leave  a  sufficient  support  for 
the  surface.  Nor  would  the  right  of  the  surface  owner,  in 
this  respect,  be  changed  by  his  erecting  thereon  dwelling- 
houses  which  would  be  injured  by  such  excavation,  and  that 
successive  owners  of  the  estate  would  be  bound  by  the  grant 
and  its  limitations.^ 

So  where  an  enclosure  act  prohibited  working  a  mine 
within  a  certain  distance  from  buildings,  the  owner  of  the 
mine  was  held  liable  for  injury  done  to  buildings  occasioned 
by  working  his  mine,  although  he  neither  exceeded  the  limits 
of  the  act,  nor  worked  his  mine  without  using  ordinary  care 
in  so  doing.  Neither  excused  him  for  failing  to  leave  a 
sufficient  support  for  the  surface,  a  right  to  which  is  incident 
to  the  ownership  thereof.'^ 

The  case  came  up  again  before  the  Exchequer  Chamber  in 
1857.  Watson,  B.  was  of  opinion  "  that  the  agreement  or 
grant  by  which  the  owner  of  the  mines  was  to  be  at  liberty 
to  work  them  without  leaving  a  reasonable  support  was  in 
effect  a  covenant  not  to  sue  on  the  part  of  the  surface 
owner,  and  that  this  would  not  run  with  the  *land,  [*478] 
that  such  a  right  was  not  the  subject-matter  of  a 

1  Nicklin  v.  Williams,  10  Exch.  259 ;  Bonomi  v.  Backhouse,  Ellis,  B.  &  E. 
622,  646  ;    Wightman,  J.,  contra,  p.  637  ;  10  Law  M.  &  K.  182  ;  ante,  p.  *100. 

2  Rowbotham  v.  Wilson,  6  Ellis  &  B.  593. 

3  Haines  v.  Roberts,  7  E.  &  Black.  625. 

36 


562  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Ch.  IV. 

grant,  since,  to  be  the  subject-matter  of  a  grant,  it  must  be 
an  easement  to  be  imposed  on  the  corporeal  property  of  the 
grantor."  He  was  therefore  of  opinion,  that  the  plaintiff 
ought  to  recover. 

Bramwell,  B.  was  of  opinion  that  the  claim  here  made  by 
the  surface  owner  of  a  right  of  support  of  his  premises  was 
not  that  of  an  easement,  because  an  easement  is  something 
additional  to  the  ordinary  rights  of  property.  But  he  held 
that  this  right  of  support  was  something  that  he  could  convey 
away  to  the  owner  of  the  mines  below,  and,  if  he  took  his  es- 
tate with  such  a  right  in  the  mine-owner  below,  he  took  it  on 
the  terms  of  its  creation,  and  was  bound  thereby.  He  there- 
fore was  for  confirming  the  judgment  in  the  King's  Bench. 

Martin,  B.  was  of  opinion  that  the  owner  of  land  may 
grant  the  surface,  subject  to  the  quality  or  incident  that  he 
shall  be  at  liberty  to  work  the  mine  underneath,  and  not  be 
responsible  for  any  subsidence  of  the  surface,  and  was  there- 
fore in  favor  of  affirming  the  former  judgment.  Williams, 
J.  was  of  the  same  opinion.  Crowder,  J.  was  of  the  same 
opinion.  He  admitted  that  a  covenant  not  to  sue  would  not 
run  with  land,  but  that  the  owner  of  land  might  release 
an  easement  or  a  right  incident  to  an  estate,  and  it  would  be 
binding  upon  those  to  whom  that  estate  comes,  and  that  here 
the  owner  of  the  surface  took  it  subject  to  the  same  limited 
right  of  support  as  the  original  grantee  under  whom  he  held. 

Cresswell,  J.  was  of  opinion  that  the  judgment  should  be 
reversed,  regarding  the  matter  as  a  covenant  on  the  part  of 
the  surface  owner  not  to  sue  for  an  injury  to  his  own 
property,  and  not  a  release  of  any  easement  or  other  right 
in  the"*  mines,  or  a  grant  of  any  interest  in  the  land  of  the 
mine-owner,  or  a  license  to  cause  an  injury  to  the  surface, 
which  would  be  personal  to  the  licensee,  and  not  grantable 
over.  But  the  judgment  of  the  King's  Bench  was 
[*479]  affirmed.  *And  when  the  case  came  before  the 
House  of  Lords  it  was  again  confirmed. ^ 

1  Rowbotluiin  V.  Wilson,  8  H.  of  L.  Cas.  248. 


Sect.  4.]       EASEMENT   OF   SUPPORT   OF   SUBJACENT   LAND.  563 

8.  In  Bonomi  v.  Backhouse,  which  was  for  an  alleged  in- 
jury to  plaintiff's  house  and  land  by  the  working  of  defend- 
ant's mines,  the  house  was  an  ancient  one,  and  the  judge, 
Wightman,  remarked,  "  Where  ancient  buildings  are  stand- 
ing upon  the  plaintiff's  land,  the  defendant  must  take  care 
not  to  use  his  own  land  in  such  manner  as  to  injure  them."  ^ 

And  after  an  enjoyment  of  the  support  of  the  natural  soil 
for  a  dwelling-house  for  twenty  years,  a  mine-owner  may 
not  so  work  his  mine  as  to  injure  the  foundations  thereof.^ 
But  if  a  house,  though  a  modern  one,  be  injured  by  a  sub- 
sidence of  the  soil  on  which  it  stands,  occasioned  by  excava- 
tions for  minerals,  he  may,  nevertheless,  recover  the  dam- 
ages thereby  occasioned,  unless  the  house  was  the  cause  of 
the  subsidence.^ 

But  if  the  owner  of  a  house  sues  for  an  injury  to  the 
same,  by  weakening  the  support  thereof,  by  excavating  for 
minerals  below  it,  he  must  state  in  his  declaration  the 
grounds  upon  which  he  is  entitled  to  have  his  house  sup- 
ported by  the  land  above  the  mines  ;  and  unless  these  are  so 
stated,  he  will  fail  in  his  action.* 

9.  In  Northeastern  Railway  Co.  v.  Elliot,  the  court  held 
that  the  doctrine  that  the  owner  of  a  mine  may  not  work  it 
so  as  to  take  away  the  reasonable  natural  support  of  the 
surface,  applies  in  cases  where  public  works  like  a  railway 
are  constructed  over  it,  and  it  is  immaterial  whether  such 
company  purchase,  or  take  the  land  under  its  act  of  incor- 
poration. But  if  such  mine  happened  to  be  full  of  water 
when  the  road  was  constructed,  whereby  the  surface  was 
supported,  as  well  as  by  props  and  ribs  of  coal  left  in  the 
mines,  the  company  could  not  complain  that  such  water 
was  afterwards  pumped  out,  and  the  surface  support  thereby 
weakened,  inasmuch  as  it  was,  from  its  nature,  a  mere  tem- 

1  Bonomi  v.  Backhouse,  Ellis,  B.  &  E.  622,  836.  See  also  Rowbotham  r.  Wil- 
son, 8  H.  of  L.  Cas.  348,  365,  367. 

2  Rogers  v.  Taylor,  2  Hiirlst.  &  N.  828 ;  Partridge  v.  Scott,  3  Mees.  &  W.  220. 

3  Strayan  v.  Knowles,  6  II.  &  Norm.  465  ;  Brown  v.  Robins,  4  H.  &  Norm.  186. 
*  Hilton  V.  Whitehead,  12  Q.  B.  734. 


564  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

porary  condition  of  the  property. ^  Where  one  worked  a 
mine  in  another's  land,  the  shaft  by  which  he  reached  it 
opening  in  a  field  in  which  tlie  owner  was  accustomed  to 
keep  his  cattle,  the  occupant  of  the  mine  was  bound  to  keep 
the  outlet  of  such  shaft  safely  fenced  so  as  to  prevent  the  cat- 
tle, rightfully  there,  from  falling  into  the  shaft.^ 


[*480]  ^SECTION  V. 

EASEMENT  OF  SUPPORT  OF  PARTS  OF  THE  SA5IE  HOUSE. 

1.  Separate  freeholds  may  be  had  in  the  different  parts  of  a  house. 

2.  One  owner  may  not  impair  the  support  of  the  part  of  another. 
3    How  far  owners  are  to  contribute  towards  repairs. 

4.  Owners  in  common  contribute  towards  repairs.     Doane  v.  Badger. 

5.  How  far  owners  of  one  story  contribute  to  support  another. 

6.  Remedy  in  equity  of  the  owner  of  one  story  against  the  owner  of  another. 

7.  Law  of  Scotland  as  to  support  of  different  stories. 

8.  Laws  of  France  on  same  subject. 

9.  Laws  of  France  as  to  houses  falling  by  decay. 

10.  How  one  estate  may  protect  itself  from  a  privy  on  another. 

1.  While  the  law  is  well  settled,  that  there  may  be  sepa- 
rate owners  in  freehold  or  inheritance  of  different  parts  of 
the  same  house,  even  though  one  of  these  be  a  single  cham- 
ber therein,^  the  common  law  seems  to  be  singularly  defi- 
cient in  definite  rules  in  respect  to  the  rights  and  obligations 
of  the  several  owners,  as  to  the  extent  and  mode  of  using 
the  parts  of  one  tenement  for  the  benefit  of  another,  or  how 
far  the  owner  of  either  part  is  bound  to  repair  the  same,  or 
to  contribute  to  the  repairs  of  other  parts. 

2.  There  are  definite  rules  upon  this  subject  in  the  Scotch 
and  French  laws  which  it  is  proposed  to  notice  briefly,  after 
considering  how  far  the  common  law  furnishes  a  guide  in 
determining  the  rights  of  the  respective  parties. 

1  Northeastern  R.  W.  Co.  v.  Elliot,  1  Johns.  &  II.  14.5. 

2  Williams  v.  Groncott,  4  B.  &  Smith,  149. 

8  Co.  Litt.  48  b  ;  1  Washb.  Ileal  Prop.  4 ;  Rhodes  v.  M'Cormick,  4  Iowa,  375. 


Sect.  G.]  EASEMENT  OF  SUPPORT  OF  PARTS  OF  A  HOUSE.    565 

It  is  well  settled,  in  the  first  place,  tliat  where  there  are 
different  storie*  to  the  same  house,  each  belonging  to  differ- 
ent owners,  neither  can  do  anything  within  his  own  story 
which  shall  impair  the  safety  or  enjoyment  of  that  of  the 
other  owners.  Thus  it  is  said  by  Lord  Campbell :  "  The 
books  of  reports  abound  with  decisions  restraining  a  man's 
acts  upon  and  with  his  own  property,  where  the  necessary  or 
probable  consequence  of  such  acts  is  to  do  damage  to  others. 
The  case  of  common  occurrence  is  where  the  upper 
*story  of  a  house  belongs  to  one  man,  and  the  lower  [*481] 
to  another.  The  owner  of  the  upper  story,  without 
any  express  grant  or  enjoyment  for  any  given  time,  has  a 

right  to  the  support  of  the  lower  story If,"  he  adds, 

*'  the  owner  of  an  entire  house  conveying  away  the  lower 
story  only,  is,  without  any  express  reservation,  entitled  to  the 
support  of  the  lower  story  for  the  benefit  of  the  upper  story," 
&c.,  assuming  this  postulate  as  an  undoubted  rule  of  law,  to 
which  he  refers  for  purposes  of  illustration. ^ 

In  the  case  last  cited,  Campbell,  C.  J.  says  :  "  If  the 
owner  of  a  house  were  to  convey  it  to  another  by  deed,  re- 
serving a  lower  story  to  himself,  whatever  powers  he  re- 
served for  the  enjoyment  of  this  story,  unless  the  right  of 
support  is  renounced  by  the  grantee  of  the  superior  stories, 
these  powers  must  be  considered  as  only  meant  to  be  exer- 
cised subject  to  this  right  being  respected." 

In  Harris  v.  Ryding,  which  was  a  case  involving  the  rights 
of  surface  owners  as  against  the  operations  of  subjacent  mine- 
owners,  Maule,  J.  says  :  "  That  right  appears  to  me  to  be 
very  analogous  to  that  of  a  person  having  a  room  in  a  house 
over  another  man's  room ;  yet  his  rights  over  his  exclusive 
property  are  not  unlimited,  but  are  limited  by  the  duty  of 
so  using  it  as  not  to  do  any  damage  to  the  property  of  an- 
other person." ^ 

1  Humphries  i\  Urogden,  12  Q.  B.  739,  747.     See  also  Smart  v.  Morton,  5 
Ellis  &  B.  30,  47. 

2  Harris  v.  Ryding,  5  Mees.  &  W.  60,  76 ;  Rhodes  v.  M'Cormick,  4  Iowa,  376. 


5GQ  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

In  the  case  last  cited,  Parke,  B.  sa/s  :  "  It  is  very  like 
the  case  of  the  grant  of  an  upper  room  in  a  house  with  the 
reservation  by  the  grantor  of  a  lower  room,  he  undertaking 
to  do  nothing  which  will  derogate  from  the  right  to  occupy 
the  upper  room  ;  and  if  he  were  to  remove  the  support  of 
the  upper  room,  ho  would  be  liable  in  an  action  of  covenant, 
for  a  grantor  is  not  entitled  to  defeat  his  own  act  by  taking 

away  the  underpinnings  from  the  upper  room." 
[*482]       *3.    Neither  of  the  above  cases,  however,  reaches 

the  question,  how  far  the  owner  of  one  part  is  bound 
to  contribute  towards  the  repair  or  maintenance  of  any  other 
part  of  tlie  structure.  If  the  notion  of  the  French  law  is  to 
be  applied,  so  far  as  the  walls  or  any  other  part  of  the  house 
are  necessary  for  the  common  benefit  of  the  whole  structure, 
they  are  to  be  considered  in  the  nature  of  party  ivalls,  and 
each  owner  must  contribute  or  aid  in  their  support  and  re- 
pair. And  this  seems  to  be  sustained  by  Kent,  Cli.,  in 
Campbell  v.  Mesier.^    • 

4.  The  same  principle  was  applied  in  the  case  of  Doane  v. 
Badger,  where  the  subject-matter  of  common  property  was  a 
jDump  which  was  out  of  repair ;  and  in  illustrating  the  doc- 
trine, the  court  refer  to  the  case  of  a  house :  "  If  the  two 
co-tenants  tacitly  agree  or  permit  the  house  or  its  appurte- 
nances to  go  to  decay,  neither  can  complain  of  the  other 
until  after  a  request  and  refusal  to  join  in  making  repairs," 
clearly  assuming,  that  if  one  joint  owner  of  common  property, 
after  notice  and  demand  of  the  other,  cause  necessary  re- 
pairs to  be  made  upon  the  same,  he  may  have  his  remedy  by 
action  for  his  reimbursement. ^ 

5.  The  point  was  incidentally  discussed  in  Loring  v. 
Bacon,  where  the  plaintiff,  who  owned  the  upper  story  of  a 
house,  the  roof  of  wliich  required  repairs,  caused  the  same  to 
be  made,  and  then  brought  an  action  of  indebitatus  assumpsit 
for  contribution  against  the  defendant,  who  owned  the  lower 

1  Ciim|il)ell  v.  Mcsicr,  4  Johns.  Cli.  334. 

2  Doaiio  V.  Badger,  12  Mass.  65,  70. 


Sect.  5.]  EASEMENT  OF  SUPPORT  OF  PARTS  OF  A  HOUSE.    567 

story  and  collar  of  the  house.  In  giving  an  opinion  in  the 
case,  the  judge,  Parsons,  refers  to  a  case  from  Keilwey,^ 
where  two  of  the  judges  were  of  opinion,  that,  if  a  man  have 
a  hoiise  underneath,  and  another  have  a  house  over  it, 
the  owner  of  the  first  house  may  compel  the  other  to  pre- 
serve the  tirahers  of  the  house  underneath  ;  and  so  may  the 
owner  of  the  house  above  compel  the  other  to  repair  the 
timbers  of  his  house  below,  and  this  by  an  action  on 
the  *case.  But  it 'is  said:  "  Some  of  the  bar  were  [*483] 
of  opinion  that  the  owner  of  the  house  underneath 
might  suffer  it  to  fall  ;  and  yet  all  agreed  that  he  could  not 
pull  it  down  to  destroy  the  house  above."  And  in  Tenant 
V.  Gold\vin,2  Lord  Holt  doubted  the  law  of  the  above  case. 

The  judge  then  proceeds  :  "  But  there,  is  unquestionably, 
a  writ  at  common  law,  de  domo  reparanda,^  in  which  A.  is 
commanded  to  repair  a  certain  house  of  his  in  N.,  which  is 
in  danger  of  falling,  to  the  nuisance  of  the  freehold  of  B., 
and  which  A.  ought,  and  hath  been  used,  to  repair.  This 
writ,  Pitzherbert  says,  lies,  when  a  man  who  has  a  house  ad- 
joining to  the  house  of  his  neighbor  suffers  his  house  to  lie 
in  decay  to  the  annoyance  of  his  neighbor's  house.  And  if 
the  plaintiff  recover  he  shall  have  his  damages,  and  it  shall 

be  awarded  that  the  defendant  repair,  &c And  there 

appears  no  reasonable  cause  of  distinction  in  the  cases, 
whether  a  house  adjoin  to  another  on  one  side  or  above  or 
underneath  it." 

He  then  goes  on  to  show  why,  if  the  case  in  Keilwey  is 
law,  the  plaintiff  in  the  case  under  consideration  could  not 
recover.  And  adds :  "  If  the  case  in  Keilwey  is  not  law, 
then,  upon  analogy  to  the  writ  at  common  law,  the  plaintiff 
cannot  compel  the  defendant  to  contribute  to  his  expenses  in 
repairing  his  own  house.  But,  if  his  house  be  considered  as 
adjoining  to  hers  (the  plaintiff's),  she  might  have  sued  an 

1  Keilwey,  98  b,  pi.  4. 

-  Tenant  v.  Goldwin,  6  Mod.  311 ;  s.  c,  2  Ld.  Rajm.  1089,  1093. 

8  Fitzh.  N.  B.  296. 


568      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Cn.  IV. 

action  pf  tlic  case  against  him  if  lie  had  suffered  his  house 

to  remain  in  decay  to  the  annoyance  of  her  house 

We  do  not  now  decide  on  the  authority  due  to  the  case  in 
Keilwey,  but,  if  an  action  on  tlie  case  should  come  before  us 
founded  on  that  report,  it  will  deserve  a  further  and  full 
consideration."  ^ 

6.  The  reasoning  of  the  court  in  the  above  case  of  Loring 
V.  Bacon,  goes  to  sustain  a  liability  of  one  part-owner 
[*484]  of  a  *  house  to  the  other  for  neglecting  to  keep  his 
own  part  in  repair.  But  in  Cheeseborough  v.  Green, ^ 
the  court  of  Connecticut  insisted  that  no  action  at  law  could 
be  maintained  by  the  owner  of  a  lower  story  of  a  house 
against  the  owner  of  the  upper  one  for  neglecting  to  keep 
the  roof  of  the  same  in  repair,  the  only  remedy  being  in 
equity.  They  also  refer  to  the  cases  above  cited  from  Keil- 
wey, and  Modern  Reports,  and  seem  to  assume  the  law  to 
be  settled,  that,  for  such  neglect  to  repair  the  roof  by  the 
owner  of  the  upper  story,  the  owner  of  a  lower  one  might 
have  a  complete  remedy  in  equity. 

To  the  above  cases  may  be  added  one  from  a  later  volume 
of  Modern'  Reports,  quantum  valebat,  where  it  is  said :  "  If 
a  man  has  an  upper  room,  an  action  lies  against  him  by  one 
that  has  an  under  room,  to  compel  him  to  repair  his  roof; 
and  so,  where  a  man  has  a  ground  room,  they  over  him  may 
have  an  action  to  compel  him  to  keep  up  and  maintain  his 
foundation."''^ 

In  giving  the  opinion  of  the  court  in  a  case  in  New  York, 
the  Judge,  Rosekrans,  uses  this  language :  "  The  rule  seems 
to  be  settled  in  England,  that,  where  a  house  is  divided  into 
different  floors  or  stories,  each  occupied  by  different  owners, 
the  proprietor  of  the  ground  floor  is  bound,  by  the  nature 
and  condition  of  his  property,  without  any  servitude,  not 
only  to  bear  the  weight  of  the  upper  story,  but  to  repair  his 

1  Loring  v.  Bacon,  4  Mass.  575. 

'■^  Cheeseborough  v.  Green,  10  Conn.  318. 

3  Anonymous,  11  Mod.  7. 


Sect.  5.]]    EASEMENT   OF   SUPPORT   OF  PARTS   OF  A  HOUSE.         569 

own  property  so  that  it  may  be  able  to  bear  such  \v«ight. 
The  proprietor  of  the  ground  story  is  obliged  to  uphold  it, 
for  the  support  of  the  upper  story."  It  however  sliould  bo 
stated,  that  every  case  which  he  cites  to  support  his  position 
is  one  in  relation  to  subjacent  support  of  land,  which  has 
come  to  be  well-settled  law.^ 

7.  Tliis  subject  has  been  treated  of  here  as  a  question  of 
servitude  at  common  law,  if,  for  no  other  reason,  because  of 
the  analogy  there  is  between  the  support  of  one  part  of  a 
dwelling-house  by  another,  and  that  of  land  by  what  is  ad- 
jacent or  sulyacent  thereto. 

The  Scotch  and  French  systems  treat  of  it  as  embraced 
under  the  law  of  servitudes.  The  former  prescribes  mi- 
nutely what  each  proprietor  of  the  several  stories  of  a  house 
is  required  to  do  in  supporting  or  maintaining  the  same. 
"  Where  a  house  is  divided  into  different  floors  or  stories, 
each  door  (floor?)  belonging  to  a  different  owner,  the  proprie- 
tor of  the  ground  floor  is  bound  by  the  nature  and  condition 
of  his  property,  without  any  servitude,  not  only  to  bear  the 
weight  of  the  upper  story,  but  to  repair  his  own  property,  in 
order  that  it  may  be  capable  of  bearing  that  weight. 
As  the  roof  *  remains  a  common  roof  to  the  whole,  [*485] 
and  the  area  on  which  the  house  stands  supports  the 
whole,  the  proprietor  of  the  ground  story  is  obliged  to  up- 
hold it  for  the  support  of  the  upper,  and  the  owner  of  the 

upper  must  uphold  it  as  a  roof  or  cover  to  the  lower 

Where  the  property  of  the  highest  story  is  divided  into  sep- 
arate garrets  among  different  proprietors,  each  proprietor 
must  uphold  that  part  of  the  roof  that  covers  his  own 
garret."^ 

8.  In  the  French  law  the  subject  is  regulated  by  the  Code,'^ 
by  which  :  "  Where  the  diflerent  stories  of  a  house  belong  to 
different  owners,  if  the  writings  relating  to  such  property  do 

1  Graves  v.  Berdan,  26  N.  Y.  501. 

2  3  Burge  Col.  &  F.  Laws,  404 ;  Ersk.  Inst.,  fol.  ed.,  357.     See  also  Hum- 
phries V.  Brogden,  12  Q.  B.  739,  756. 

3  Code  Nap.,  Art.  664.     See  Pardcssus,  Traite'  dcs  Servitudes,  2S8,  290. 


570  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

not  iK)gulatc  tlie  custom  of  repairs  and  rebuildings,  they 
shall  be  done  as  follows.  The  main  walls  and  the  roof  are 
at  the  charge  of  all  the  owners^  each  one  in  proportion  to 
the  value  of  the  story  belonging  to  him.  The  proprietor  of 
each  story  is  at  the  expense  of  his  own  flooring.  The  pro- 
prietor of  the  first  story  makes  the  staircase  which  leads  to 
it ;  the  proprietor  of  the  second  story  makes,  beginning  from 
where  the  former  ended,  the  staircase  leading  to  his,  and  so 
on." 

This  rule  is  based  upon  the  above  suggestion,  that,  while 
each  is  to  do  whatever  is  necessary  within  his  own  premises, 
so  much  of  the  structure  as  is  for  the  common  benefit  of  all 
the  proprietors  is  made  a  common  charge.  And  Toullier 
accordingly  says,  it  is  not  only  the  principal  walls  of  the 
house  that  become  party  (niiloyens'),  but  also  tke  roof,  the 
stairs,  the  large  beams,  &c.,  and  it  was  necessary  to  deter- 
mine the  manner  of  contributing  to  the  several  repairs  which 
were  common  to  the  proprietors,  which  led  to  the  adoption 
of  the  article  of  the  code  above  cited. ^ 

The  proprietor  of  either  story  may  do  what  he 
[*486]  sees  fit  *within  his  own  premises,  provided  he  do 
nothing  to  prejudice  the  proprietors  of  the  other 
stories,  either  in  respect  to  the  convenience  or  stability  of  the 
same.  He  may  not,  for  example,  place  a  forge  therein, 
because  of  the  inconvenience  it  would  occasion  to  the  pro- 
prietor above  him.  Nor  may  he  change  the  flues  of  the 
chimneys  or  make  new  ones.  And  so  with  other  changes  or 
new  structures  which  run  through  the  parts  of  the  house 
belonging  to  other  proprietors. ^ 

In  several  of  the  departments  mentioned  by  Merlin,  sub- 
stantially the  same  rule  prevails  as  to  the  support  and  repairs 
of  houses  as  tliat  given  above  as  the  Scotch  law.^ 

Duranton  refers  to  the  position  of  M.  Delvincourt,  that, 

1  3  Toullier,  Droit  Civil  Fran(;ais,  152;  5  Diirauton,  Cours  De  Droit  Fraa- 
fais,  384. 
'^  Merlin,  Repertoire  de  Jurisprudence,  tit.  Dalimenl,  §  2. 
3  Ibid. 


Sect.  5.]  EASEMENT  OF  SUPPORT  OF  PARTS  OF  A  HOUSE.    571 

where  there  is  no  agreement,  the  several  proprietors  ought 
to  contribute  ratably  to  the  repairs  and  reconstruction  of  the 
embankments,  the  arches  and  walls  of  the  cellar  of  houses, 
and,  in  a  word,  of  all  the  parts  whicli  are  necessary  to  the 
stability  of  the  edifice  as  a  whole,  or  which  serve  for  the 
convenience  of  the  several  tenants,  such  as  wells,  cess-pools 
(fosses  (Vaisance),  and  common  passage-ways.  But  he 
differs  from  him  in  respect  to  arches  in  cellars.  Such  arches 
are  not  essential  to  sustaining  the  edifice,  at  least  not  gen- 
erally, for  the  division  walls  which  serve  to  support  the 
several  stories  start  from  their  foundations.  The  arches  of 
the  cellar  are  the  flooring  upon  which  the  proprietor  of  the 
ground  floor  treads,  and  consequently  they  oiight  to  remain 
at  his  charge,  even  though  he  may  not  be  the  proprietor  of 
the  cellar.^ 

If  in  a  house  divided  as  above  supposed  it  shall  hQ  neces- 
sary to  place  props  or  supports,  as,  for  example,  wliile  relay- 
ing the  underpinning  of  the  lower  part  of  tlie  same,  in 
doing  Avhich  it  may  require  stays  or  supports  for  the  upper 
parts  thereof,  a  question  has  been  made  at  whose 
*expense  these  props  are  to  be  provided.  It  might  [*487] 
seem  that  it  should  bo  at  the  expense  of  the  pro- 
prietor of  the  upper  part,  that  being  the  part  wdiich  is  needed 
to  be  supported.  But  the  custom  of  cities  having  imposed  it 
upon  tlie  proprietor  of  the  lower  part  of  the  house  alone  to 
sustain,  at  his  own  expense,  the  walls  of  the  interior  part, 
although  they  support  the  upper  part  of  the  house,  it  seems 
•to  be  a  necessary  conclusion,  that  whatever  occupies  the 
place  of  these  walls  ouglit  to  be  provided  at  the  expense  of 
the  proprietor  of  the  lower  part.  Consequently,  the  proprie- 
tor of  the  upper  part  of  the  house  is  not  bound  to  contribute 
towards  such  support.^ 

In  fixing  the  proportions  of  the  joint  expense  of  maintain- 

1  5  Duranton,  supra,  385,  386.     See  3  Toullier,  Droit  Civil  Franeais,  153. 
1  Le  Page  Desgodcts,  108-118. 
"^  Merlin,  supra,  §  2. 


572  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.         [Cii.  IV. 

ing  the  walls,  &c.,  of  houses,  as  stated  in  the  above  article 
of  the  code,  among  the  several  proprietors  of  the  respective 
stories,  regard  is  not  had  to  what  may  have  been  incurred 
by  way  of  embellishment  or  ornamentation  by  the  proprietor 
thereof.^ 

If,  in  case  a  house  be  destroyed  by  fire  or  demolished  on 
accomit  of  its  age,  one  of  the  proprietors  oppose  the  wishes 
of  the  others  for  rebuilding  it,  the  latter  may  compel  him  to 
elect  whether  he  will  abandon  his  rights  or  contribute  to  its 
reconstruction,  which  will  be  apportioned  upon  each  story 
according  to  the  rules  of  law  above  stated.  And  the  writer 
expresses  an  opinion,  that  in  such  case  it  ought  not  to  be  in 
the  power  of  any  one  to  change  the  nature  of  the  ownership 
of  the  land  into  a  common  heritage,  subject  to  be  divided 
among  the  proprietors,  for  the  proprietor  of  the  around  floor 
or  lower  story  ought  not  to  be  required  to  yield  any  part  of 
the  land,  and  the  other  proprietors  have  an  interest  to  have 

their  respective  stories  entire.^ 
[*488]  *9.  The  common-law  doctrine  of  compelling  a  party 
to  repair  his  house  when  it  is  ruinous  by  a  writ  de 
domo  repairmda,  was  mentioned  in  the  case  of  Loring  v. 
Bacon,^  above  cited.  By  the  French  law,  if  a  house  is  in 
such  a  ruinous  condition  as  to  threaten  to  fall,  and  the  owner 
neglects  to  take  it  down  or  support  it  by  sufficient  props,  he 
may  be  compelled  by  the  police  to  do  so,  and  his  neighbor 
may  also  be  authorized  to  make  the  demolition,  or  apply 
such  necessary  props  at  the  expense  of  the  delinquent  pro- 
prietor. 

10.  Questions  have  arisen  between  the  owjiers  of  adjacent 
estates,  upon  one  of  which  an  existing  privy  is  in  use,  as  to 
whether  the  owner  of  the  privy  or  the  owner  of  the  other 
estate  is  to  protect  the  latter  from  the  effect  of  the  same. 

1  5  Duranton,  supra,  387  ;  3  Toullicr,  supra,  153. 

2  .■)  Duranton,  supra,  388.  For  the  efteet  upon  a  demise,  of  a  destruction  of 
the  demised  promises,  see  Winton  v.  Cornish,  5  Ohio,  477  ;  StockwcU  r.  Hunter, 
1 1  Mete.  448. 

**  Merlin,  supra,  §  3. 


Sect  5.]  EASEMENT  OF  SUPPORT  OF  PARTS  OF  A  HOUSE.    573 

The  rule,  as  stated  in  the  case  of  Tenant  v.  Gohlwin,  seems 
to  be  this  :  If  A  has  a  privy  upon  his  estate,  which  is  sepa- 
rated from  the  house  of  B  by  a  wall,  and  the  wall  belong  to 
A,  he  is  bound  to  keep  the  same  in  repair,  and  thus  protect 
the  estate  of  B.  So  if  one  own  two  houses,  and  there  is  a 
privy  belonging  to  one,  against  which  the  other  house  is 
protected  by  a  wall,  and  he  sell  the  house  and  privy  together, 
the  purchaser  will  be  bound  to  keep  it  in  repair,  and  this 
duty  will  run  with  the  estate.  But  if  one  erect  a  house  with 
a  privy  adjoining  a  vacant  estate,  and  the  owner  of  the  latter 
would  dig  a  cellar  and  erect  a  house  near  the  privy,  it  will 
be  for  him  to  erect  a  wall  to  protect  his  premises.  And  the 
same  rule  would  apply  if  the  owner  of  such  house  is  also  the 
owner  of  the  vacant  lot,  and  he  sell  the  latter.  If  the  pur- 
chaser would  occupy  it,  he  must  protect  himself,  by  works 
upon  his  own  land,  against  the  privy  already  standing  upon 
the  adjacent  lot.^ 

1  2  Ld.  Raym.  1089;  s.  c,  6  Mod.  313,  314;  Holt,  500  s.  c,  Salk.  360, 
where  the  language  of  the  court  is,  "  an  old  privy,"  when  speaking  of  one's 
digging  a  cellar,  &c.  near  an  existing  privy,  which  may  be  regarded  a  material 
qualification  of  language  reported  in  Lord  Raymond. 

In  the  French  law,  the  Code  prescribes  rules  regulating  the  distances  at  which 
one  proprietor  of  an  estate  may  construct  cesspools  and  other  causes  of  nui- 
sance in  reference  to  that  of  an  adjacent  owner.  Thus,  Art.  674  provides  that, 
"  He  who  digs  a  well  or  cesspool,  near  a  party  wall  or  not,  is  obliged  to  leave 
the  distance  prescribed  by  the  regulations  and  usages  particular  to  such  things, 
or  to  do  the  work  prescribed  by  the  same  regulations  and  usages  to  avoid  nui- 
sance to  a  neighbor."  It  is  understood  that  this  extends  also  to  privies  (la- 
trines). There  is  also  a  duty  imposed  upon  the  owners  of  these  to  keep  them 
cleaned  out ;  and  if  they  shall  fail  to  do  so,  the  nearest  neighboring  owners  may 
cause  the  same  to  be  done  at  the  expense  of  the  owner  of  what  causes  the 
nuisance.  2  Fournel,  Traite'  du  Voisinage,  190;  Code  Nap.,  Art.  674,  Bar- 
rett's ed. 


574  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

[*489]  *SECTION    VI. 

EASEMENTS   AND    SERVITUDES   OF   LIGHT    AND   AIR. 

1.  Of  the  nature  of  the  easement  of  light  and  air. 

2.  Servitudes  in  this  respect  at  the  civil  law. 

•8.  Wlietlier  the  right  be  a  negative  servitude  or  positive  easement. 

4.  How  far  the  right  is  a  proper  subject  of  prescription. 

5.  Tlieory  of  the  right  being  by  grant  or  covenant. 

6.  Right  treated  in  I^ngland  as  one  of  prescription. 

7.  No  easement  of  prospect  at  common  law. 

8.  Easement  of  light  only  gained  against  owner  of  inheritance. 

9.  How  far  grant  of  house  carries  easement  of  light. 

10.  Does  not  apply  against  vendee  of  vacant  land. 

11.  Swansborough  v.  Coventry.     New  building  has  only  rights  of  old. 

12.  Compton  v.  Richards.     Rights  of  light  affected  by  state  of  premises. 

13.  Coutts  V.  Gorham.     Same  subject,  where  rights  are  fixed. 

14.  Unity  of  the  two  estates  extinguishes  easement  of  light. 

15.  How  extent  of  easement  is  measured. 

16.  What  interruption  of  light  lays  foundation  for  an  action. 

17.  American  law  as  to  light  and  air. 

18.  19.  Parker  v.  Foote,  Myers  v.  Gemmel.     New  York  law. 

20.  Law  of  jMassachusetts  on  the  subject. 

21.  Law  of  Maine  on  the  subject. 

22.  Law  of  Connecticut. 

23.  Law  of  Maryland.     Cherry  v.  Stein. 

24.  Law  of  South  Carolina  as  to  light  and  air. 

25.  Cases  in  Pennsylvania  on  same  subject. 

26.  Easement  of  light  passes,  if  necessary  to  enjoy  th6  grant. 

27.  In  what  States  the  English  rule  of  law  prevails. 

28.  United  States  v.  Appleton.     Effect  of  sale  of  house  with  lights,  &c. 

29.  Hills  V.  Miller.     Easement  of  light  and  prospect  by  grant. 
SO.  Easement  of  wind  for  windmill. 

31.  Easement  of  noisome  trade,  &c. 

32.  Negative  easement  to  prevent  certain  trades. 

[*490]  *1.  There  has  long  been  recognized  by  the  Eng- 
lish common  law,  and  now  by  the  statute  of  2  &  3 
Will.  4,  c.  71,  a  right,  under  certain  circumstances,  to  enjoy, 
in  favor  of  one  tenement,  the  light  and  air  which  naturally 
reaches  it  in  coming  laterally  from  and  across  the  land  of  an 
adjacent  proprietor.  It  is  treated  of  as  an  easement  in  favor 
of  the  one,  and  a  servitude  upon  and  over  the  other,  though 
it  obviously  wants  many  of  the  incidents  of  those  easements 


Sect.  6.]      EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  575 

which  are  acquired  by  the  adverse  enjoyment,  in  some  form, 
of  a  benefit  in  favor  of  one  estate  which  injuriously  affects 
another. 

A  question  lias  sometimes  been  made,  whether  this  right 
is  a  positive  casement  in  favor  of  the  estate  which  enjoys  tlie 
benefit  of  the  light,  and  which  the  adjacent  owner  may  not 
impair,  or  a  negative  servitude  imposed  upon  the  adjacent 
land  to  which  the  owner  is  bound  to  submit. 

2.  In  the  civil  law,  among  the  negative  services  which 
might  be  imposed  upon  lands,  one  was,  that  the  owner 
should  not  darken  his  neighbor's  windows ;  another  was, 
that  he  should  not  hinder  his  prospect  by  building  or  plant- 
ing trees,  and  another,  that  he  should  not  make  any  win- 
dows to  overlook  his  neighbor,  and  in  that  way  take  away 
the  privacy  of  his  house.  And  it  is  said,  if  one  has  no  ser- 
vice of  this  kind  upon  him,  he  may  make  as  many  windows 
as  he  pleases,  but  the  other  party  may  erect  sheds  against 
them,  and  so  make  them  useless,  unless  the  windows  have 
been  there  time  out  of  mind.^ 

3.  Cresswell,  J.  seems  to  regard  it  rather  as  a  negative 
servitude  upon  the  land  adjacent  to  the  tenement,  than  a 
positive  easement  in  favor  of  the  tenement  itself.  "  There 
are  many  cases  in  which  the  principle  has  been  recognized, 
that  one  land-owner  cannot,  by  altering  the  condition  of  his 
land,  deprive  the  owner  of  the  adjoining  land  of  the 
*privilegc  of  using  his  own  as  he  might  have  done  [*491] 
before.     Thus  he  cannot,  by  building  a  house  near 

the  margin  of  his  land,  prevent  his  neighbor  from  building 
on  his  own  land,  although  it  may  obstruct  windows,  unless, 
indeed,  by  lapse  of  time  the  adjoining  land  has  become  sub- 
ject to  a  right  analogous  to  what  in  the  Roman  law  was 
called  a  servitude."  ^ 

4.  This  right  of  excluding  the  owner  of  vacant  land  from 

1  Ayl.  Pand.  310;  Wood,  Inst.  Civ.  Law,  93;  Inst.  2,  3,  1;  D.  8,  2,  1.5; 
Ersk.  Inst.  B.  2,  tit.  9,  §  10. 

2  Smith  V.  Kenricii,  7  C.  B.  515,  565. 


676  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Ch.  IV 

building  thereon,  because  a  neighboring  proprietor  had  en- 
joyed his  own  estate  in  such  way  as  he  saw  fit,  without  in 
any  manner  injuriously  affecting  or  interfering  with  the 
rights  of  the  first,  is  admitted  by  most  who  have  discussed  it 
to  be  difficult  if  not  impossible  to  sustain,  upon  any  notion 
of  prescription  or  grant  known  to  the  law.  In  the  first 
place,  such  enjoyment  is  had  upon  the  land  of  the  one  who 
claims  it,  and  the  subject-matter  of  such  enjoyment  is  not 
anything  which  is  the  subject  of  grant  from  another,  for 
light  and  air  belong  to  no  man  except  as  they  may  be  enjoyed 
upon,  and  in  connection  with,  his  own  land  or  tenement. 
And  in  the  next  place,  such  enjoyment  can  in  no  sense  be 
adverse  to  any  one,  since  he  thereby  uses  simply  what  is  his 
own,  and  in  no  manner  affects  or  interferes  with  the  enjoy- 
ment of  the  same  light  and  air  by  other  persons,  in  such 
manner  as  they  please.  And  the  cases  are  uniform,  that 
such  adjacent  owner  may  deprive  his  neighbor  of  the  light 
coming  laterally  over  his  land,  by  the  erection  of  a  wall,  for 
instance,  upon  his  land  within  the  period  of  prescription, 
although  he  may  do  it  for  the  mere  purpose  of  darkening  his 
neighbor's  windows.  So  far,  therefore,  as  it  prevails,  this 
right,  as  it  results  from  long  enjoyment,  may  be  deemed  to 
exist  rather  by  a  positive  rule  of  law  than  by  the  application 
of  any  of  the  ordinary  principles  of  prescription,  and  is 
derived  from  a  simple  occupancy,  without  its  being  in  any 

sense  adverse  in  its  enjoyment.^ 
[*492]       *And  it  is  said,  that,  as  a  rule  of  law,  it  never 

became  settled  in  Westminster  Hall  until  1786,  in 
Dai'win  v.  Upton,  found  in  2  Wms.  Saund.  175  d,  note.^ 
Bat  in  Calthorp's  reports,  published  in  1661  (p.  3-8),  it 

1  Moore  v.  Rawson,  3  Barnew.  &  C.  332,  340;  Renshaw  v.  Bean,  18  Q.  B. 
112;  Cox  V.  Mattliews,  1  Vcntr.  239;  Chandler  v.  Thompson,  3  Campb.  80; 
per  Baijlcy,  J.,  Cross  v.  Lewis,  2  Barnew.  &  C.  686 ;  Parker  v.  Foote,  19  Wend. 
309,  317  ;  Mahan  v.  Brown,  13  Wend.  261  ;  Pickard  r.  Collins,  23  Barb.  444  ; 
Ray  V.  Lynes,  10  Ala.  63  ;  Cherry  v.  Stein,  11  Md.  122;  Tud.  Lead.  Cas.  123  ; 
2  Washb.  Real  Prop.  61. 

2  Parker  v.  Foote,  19  Wend.  309,  317. 


Sect.  6.]      EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  577 

is  shown  that  by  the  custom  of  London  one  might  not  erect 
a  new  house  upon  a  vacant  lot  so  as  to  obscure  the  windows 
of  an  ancient  house,  for  the  ancient  house  had,  ])y  tlie  enjoy- 
ment, acquired  an  easement  of  light  by  prescription.  If 
both  were  new  houses  no  such  custom  obtained,  nor  did  it, 
if  the  windows  which  are  obscured  be  new  ones.  So  if  one 
built  upon  an  old  foundation,  but  no  larger  than  the  founda- 
tion itself,  he  would  not  be  liable,  if  he  built  higher  than  the 
original  building,  and  thereby  obscured  ancient  windows 
which  opened  from  tlie  adjoining  houses  which  had  not  been 
obscured  by  the  original  building.  But  no  one  could  claim 
an  easement  of  prospect  by  prescription.^ 

But  the  right  to  build  upon  an  old  foundation,  so  as  to 
obscure  ancient  windows,  is  taken  away  by  the  Stat,  of  2  and 
3  Wm.  4,  C.  71.'-^ 

5.  There  is  a  view,  indeed,  by  which  the  so-called  pre- 
scriptive right  of  light  and  air  is  sometimes  sustained,  which 
is  more  compatible  with  the  general  rules  of  law  than  by 
treating  it  as  a  thing  gained  by  grant  evidenced  by  adverse 
enjoyment,  and  that  is  as  evidence  on  the  part  of  the  owner 
of  the  land  over  which  it  is  claimed,  that,  for  a  sufficient 
consideration,  he,  or  those  under  whom  he  claims,  had 
covenanted  or  agreed  not  to  use  his  land  so  as  to  interrupt 
the  enjoyment  of  the  buildings  standing  upon  the  adjacent 
lot.  It  is  but  carrying  out  what  has  already  been  shown  to 
be  a  familiar  rule  of  law,  that,  if  one  grant  an  estate  to 
which  certain  apparent  and  continuous  subjects  of  enjoy- 
ment belong,  and  are  used  therewith,  like  that  of  an  aque- 
duct, lateral  support  by  adjacent  soil,  and  the  like,  he  cannot 
afterwards  derogate  from  the  benefit  of  his  own  grant  by 
interfering  therewith.  Upon  the  same  principle,  if  one  who 
has  a  house  with  windows  looking  upon  his  own  vacant  land 
sell  the  same,  he  may  not  erect  upon  his  vacant  land  a 
structure  which  shall  essentially  deprive  such  house  of  the 

1  See  Anon.,  Com.  Rep.  273. 

2  Truscott  V.  Merch.  Tailor's  Co.,  11  Exch.  855. 

37 


578  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  IV. 

light  through  its  windows.  And  if  the  length  of  enjoyment 
is  sufficient  to  raise  a  presumption  that  it  was  done  under 
some  such  actual  or  implied  covenant  or  agreement,  the 
doctrine  may  be  sustained  without  violating  the  ordinary 
rules  of  prescription,  as  they  have  generally  been  under- 
stood.^ 
[*493]  *But  how  this  right  to  light  and  air  over  another's 
land  may  be  considered  as  acquired  by  law  is  spoken 
of  by  Patteson,  J.  as  "  a  question  of  some  nicety."  ^ 

6.  Upon  whatever  ground  the  claim  rests,  it  has  long  been 
held  in  England  that  one  may  prescribe  for  the  right  of  light 
and  air  to  come  to  his  windows  unobstructed  across  the  land 
of  another,  if  enjoyed  for  twenty  years,  or  the  period  of  ordi- 
nary prescription.^ 

7.  It  may  be  stated,  however,  in  respect  to  the  civil-law 
easement  or  servitude  of  a  right  of  prospect,  that  it  cannot 
be  acquired  at  common  law,  by  any  mere  length  of  enjoy- 
ment.* 

But  a  party  may,  by  the  terms  of  his  grant,  be  estopped 

1  Moore  v.  Rawson,  3  Barnew.  &  C.  332,  340  ;  Palmer  v.  Fletcher,  1  Lev. 
122;  Aldred's  case,  9  Rep.  58  b  ;  Darwin  v.  Upton,  cited,  3  T.  R.  159;  2 
Wins.  Saund.  175  d,  note;  Harbridge  v.  Warwick,  3  Exch.  522.  But  see  Row- 
botham  v.  Wilson,  8  Ellis  &  B.  143,  per  Watson,  B. ;  United  States  v.  Appleton, 
1  Sumn.  492,  501.  See  Crompton,  J.,  Stokoe  v.  Singers,  8  Ellis  &  B.  31,  38.  See 
White  V.  Bass,  7  H.  &  Norm.  722. 

2  Blanchard  v.  Bridges,  4  Adolph.  &  E.  176. 

3  Cross  V.  Lewis,  2  Barnew.  &  C  690 ;  Aldred's  case,  9  Rep.  58  b  ;  Renshaw 
V.  Bean,  18  Q.  B.  112,  131  ;  Sury  v.  Pigott,  Poph.  166.  Contra,  Bury  v.  Pope, 
Cro.  Eliz.  118;  Lewis  v.  Price,  2  Wms.  Saund.  175  a,  note;  3  Kent,  Comm. 
448. 

Numerous  cases  have  arisen  in  the  English  courts  upon  the  acquisition  of  a 
prescriptive  right  to  easements,  like  light  and  air,  under  the  provisions  of  the 
statute  of  2  &  3  Will.  4,  c.  71,  and  the  construction  given  to  it  by  the  courts, 
among  which  is  that  of  Flight  v.  Thomas,  8  Clark  &  F.  231,  which  are  purposely 
omitted  in  this  work,  as  being  matters  of  local  statute  law,  except  so  far  as  they 
may  have  served  to  illustrate  some  doctrine  of  the  common  law.  See  Ward  v. 
Robins,  15  Mees.  &  W.  237,  242  ;  Wright  v.  Williams,  1  Mees.  &  W.  77  ;  Plas- 
terers' Co.  V-  Parish  Clerks'  Co.,  6  Eng.  L.  &  Eq.  481.  See  Cooper  i;.  Hubbuck, 
12  0.  B.  N.  i5.  456. 

*  Aldred's  case,  supra  ;  Com.  Dig.,  Action  on  the  Case  for  a  Nuisance,  C  ; 
Parker  v.  Foote,  19  Wend.  309  ;  Calthorp's  Rep.  5. 


Sect.  6.]     EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  579 

from  afterwards  obstructing  tlio  prospect  which  the  grantee 
of  the  premises  was  to  enjoy  as  an  incident  to  his  grant.^ 

8.  And  in  order  to  acquire  an  easement  of  light  over  a 
parcel  of  land,  by  adverse  enjoyment,  the  same  must  have 
been  had  while  the  servient  estate  was  in  the  possession 
of  the  owner  of  the  inheritance.  No  lengtli  of  en- 
*joyment,  as  against  a  tenant,  can  bind  the  rights  of  [*494] 
a  reversioner.^ 

9.  In  applying  the  doctrine  above  stated,  that  one  may 
not  derogate  from  his  own  grant,  to  the  case  of  the  enjoy- 
ment of  lights  belonging  to  dwelling-houses  which  have  been 
the  subjects  of  the  grant,  there  is  a  series  of  cases,  beginning 
with  Palmer  v.  Fletcher,  where  it  has  been  held  by  the  Eng- 
lish courts,  that,  if  one  having  a  house  with  windows  to  which 
the  light  comes  over  his  adjacent  land  sell  the  house,  neither 
he,  nor  any  one  claiming  under  him,  can  do  anything  upon 
the  adjacent  land  to  obstruct  these.^ 

10.  But  if  the  vendor  had  sold  the  land,  and  reserved  the 
house,  he  would  not  have  thereby  reserved  the  right  of  en- 
joyment of  the  lights,  except  by  express  terms  of  his  deed.* 

Nor  would  it  make  any  difference  in  the  application  of  this 
principle,  that  the  grantor  of  the  house  had,  previously,  let 
it  to  his  grantee  by  a  lease  which  limited  and  restricted  him 
from  erecting  a  house  on  the  leased  premises,  so  as  to  obscure 
the  lights  upon  the  lessor's  premises.  The  grantor,  by  his 
subsequent  unqualified  grant  of  the  reversion  to  the  lessee, 
abrogated  this  limitation  and  restriction  in  the  lease. ^ 

1  Piggott  V.  Stratton,  Johns.  Ch.  (Eng.)  341,  3.5G,  357.  See  Attorney-General 
V.  Doughty,  2  Ves.  Sen.  453 ;  Squire  v.  Campbell,  1  Mylne  &  C.  459. 

^  Shelf.  E.  P.  Stat.  98 ;  Baker  v.  Richardson,  4  Barnew.  &  Aid.  578  ;  Daniel 
V.  North,  11  East,  372. 

3  Palmer  v.  Fletcher,  1  Lev.  122;  Cox  v.  Matthews,  1  Ventr.  237  ;  Rosewell 
V.  Pryor,  6  Mod.  116;  s.  c.  Holt,  500;  Tenant  v.  Goldwin,  6  Mod.  311  ;  s.  c, 
2  Ld.  Raym.  1089 ;  Compton  v.  Richards,  1  Price,  27 ;  Swansboroxigh  v.  Cov- 
entry, 9  Bing.  305.  Per  Bat/ley,  J.,  Canham  v.  Fisk,  2  Crompt.  &  J.  126  ;  s.  c, 
2  Tyrw.  155  ;  Shelf.  E.  Stat.  98  ;  Robins  v.  Barnes,  Hob.  131  ;  United  States 
V.  Appleton,  1  Sumn.  492,  501  ;  2  Dane,  Abr.  716;  Com.  Dig.,  Action  on  the 
Case  for  a  Nuisance,  A. 

*  Per  Kehjufje,  Palmer  v.  Fletcher,  supra  ;  Tenant  v.  Goldwin,  supra. 

5  White  V.  Bass,  7  H.  &  Norm.  722. 


580  THE    LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cii.  IV. 

But  where  there  were  two  subsisting  tenements  adjoining 
each  other,  and  the  owner  leased  one  of  them,  the  lessee 
would  not  have  a  right  to  obstruct  the  lights  in  the  other 
tenement  as  they  existed  at  the  time  when  the  lease  was 
made,  although  the  same  were  a  recent  erection,  and  there 
were  no  stipulation  in  regard  to  the  same  in  the  lease. ^ 

11.  In  the  case  of  Swansborough  v.  Coventry,  the  build- 
ing complained  of  had  been  erected,  upon  the  site  of  an  old 
one  which  had  been  torn   down,  upon  land  purchased  for 

building  purposes.  But  the  new  building  was  higher 
[*495]   than  *the  old  one,  and  it  appeared  that  both  estates 

had  been  derived  from  the  same  vendor,  and  were 
both  sold  at  the  same  time.  The  plaintiff's  house  was  an 
ancient  one,  and  was  conveyed  with  "  all  lights,  easements," 
(fee.  ;  and  it  was  held  that  the  defendant  had  no  right  to 
erect  a  new  building  higher  than  the  one  formerly  standing 
upon  his  land,  so  as  to  obscure  the  ancient  lights  in  the 
plaintiff's  house.^ 

12.  In  the  case  of  Compton  v.  Richards  the  buildings  and 
lots  in  relation  to  which  the  question  of  the  right  of  enjoy- 
ment of  lights  arose  were  parts  of  a  general  enterprise  for 
the  erection  of  a  range  of  buildings  at  Clifton,  called  the 
Royal  York  Crescent.  The  design  having  been  abandoned, 
the  several  lots  and  houses,  so  far  as  erected,  were  sold  in 
lots,  with  certain  conditions  stipulated  in  the  sale.  The 
plaintiff's  lessor  and  the  defendant  bought  adjoining  lots, 
and  it  was  alleged  that  the  defendant  had  raised  the  walls 
of  his  house  higher  than  were  laid  down  in  the  plan  and  ele- 
vation of  the  same,  as  described  and  referred  to  in  the  con- 
ditions of  sale.  It  appeared  that  the  spaces  for  the  windows 
alleged  to  be  obstructed  were  actually  opened  in  the  walls 
at  the  time  of  the  sale.  The  Chief  Baron  says :  "  This  pur- 
chase must  have  been  taken  to  have  been  subject  to  certain 
conditions  at  the  time  of  sale,  and  as  these  unfinished  houses 


1  Riviere  v.  Bower,  Ry.  &  M.  24. 

2  Swansborough  v.  Coventry,  9  Bing.  305. 


Sect.  6.]     EASP:MENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  581 

were  at  that  time  so  far  built  as  that  the  openings  which 
were  intended  to  be  supplied  with  windows  were  sufficiently 
visible  as  they  then  stood,  we  must  recognize  an  implied  con- 
dition tliat  nothing  would  afterwards  be  done  by  which  those 
windows  might  be  obstructed.  And  the  purchasers  must 
have  taken  subject  to  what  then  appeared,"  Wood,  B.  says: 
"  When  this  house  was  granted  to  the  plaintiff's  lessor,  he 
became  grantee  of  everything  necessary  to  its  enjoyment,  as 
much  as  if  it  had  been  said,  at  the  time,  that  no  one  should 
obstruct  the  light  whicli  it  then  enjoyed."^ 

*13.  This  doctrine,  that  the  rights  of  parties  to  [*496] 
the  use  of  light,  where  claiming  under  the  same 
grantor,  and  that  these  are  governed  by  the  state  of  the 
premises  at  the  time  of  acquiring  title  to  the  same,  is  illus- 
trated in  the  case  of  Coutts  v.  Gorham,  where  the  owner  of 
two  estates,  each  of  them  ancient  houses,  leased  one  of  them 
for  twenty-one  years  to  A.  B.,  who  assigned  it  to  the  defend- 
ant. Defendant  afterwards,  and  during  the  term,  took  a 
new  lease  from  the  owner  for  twenty-one  years.  But  be- 
tween the  making  of  the  first  and  second  leases  the  owner 
altered  the  windows  in  the  other  house,  and  lot  the  same  to 
the  plaintiff,  a  few  months  before  the  defendant  took  his  sec- 
ond lease.  The  defendant  obstructed  these  new  windows  in 
the  tenement  of  the  plaintiff,  for  which  he  brought  an  ac- 
tion. It  was  held,  that,  by  taking  a  new  lease  from  the 
plaintiff's  lessor,  the  defendant  surrendered  his  first  one, 
and  that  he  took  the  premises  as  they  then  were,  and  had 
no  right  to  obstruct  the  windows  as  they  then  existed  in  the 
plaintiff's  tenement.^ 

14.  The  more  ancient  case  of  Robins  v.  Barnes  is  in 
accordance  with  the  doctrine  above  stated.  In  that  case 
there  was  an  ancient  house,  and  an  adjacent  owner  having 
erected  a  new  one  which  obscured  the  windows  of  the  for- 
mer house,  the  owner  thereof  purchased  the  new  house,  and 

1  Compton  V.  Richards,  1  rrice,  27,  36,  38. 
"  Coutts  V.  Gorham,  1  Mood.  &  M.  396. 


582       THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  IV. 

then  sold  the  ancient  one.  It  was  held,  that  by  such  unity 
of  title  and  possession  the  easement  of  light  and  air  once 
belonging  to  the  ancient  house  was  extinguished,  and  the 
purchaser  therefore  took  the  premises  in  the  condition  in 
which  they  were  when  the  same  were  conveyed,  without 
any  such  right  of  easement. ^ 

15.  Where  an  easement  of  light  is  acquired  by  enjoyment 
and  user,  the  extent  of  such  right  is  measured  by  the  pur- 
poses and  mode  of  such  enjoyment.     Thus  where 

[*497]  one  had  *  acquired  a  right  of  light  for  a  malt-house, 
and  complained  of  the  obstruction  thereof,  it  was 
held  that  the  question  to  be  determined  was,  whether  the 
defendant  had  obstructed  the  light  so  as  not  to  have  enough 
left  for  the  use  and  enjoyment  of  a  malt-house.  For  any 
excess  beyond  such  obstruction  he  would  not  be  liable,  al- 
though the  malt-house  had  been  changed  to  a  dwelling-house, 
and  the  enjoyment  of  more  light  was  requisite  to  its  con- 
venient occupation.^ 

16.  And  in  respect  to  the  extent  or  degree  to  which  the 
obstruction  of  one's  light  must  be  carried,  in  order  to  enable 
the  party  entitled  to  it  to  maintain  an  action  for  the  injury, 
it  is  said  by  the  courts  that  "  there  must  be  a  substantial 
privation  of  light,  sufficient  to  render  the  occupancy  of  the 
house  uncomfortable,  and  to  prevent  the  owner  from  carry- 
ing on  his  accustomed  business  on  the  premises  as  bene- 
ficially as  he  had  formerly  done."  And  it  is  for  the  jury  to 
discriminate  between  practical  inconvenience  and  a  real 
injury  to  the  enjoyment  of  the  premises.^ 

17.  The  subject  has  thus  far  been  treated  of  chiefly  from 
the  point  of  view  of  the  English  common  law,  with  a  brief 
allusion  to  English  local  statutes.  This  has  been  done  in 
order  to  present,  in  something  like  a  connected  order,  the 
rules  which  prevail  in  the  American  States  upon  the  siibject 

1  Robins  v.  Barnes,  Ilob.  131. 

2  Martin  v  Goble,  I  Campb.  320. 

8  Bacic  V.  Staccy,  2  Carr.  &  P.  46.5  ;  Parlicr  v.  Smith,  5  Carr.  &  P.  438  • 
Pringlc  V.  Wcrnham,  7  Carr.  &  P.  377 ;  Wells  v.  Ody,  7  Carr.  &  P.  410. 


SucT.  6.]     EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  583 

of  acquiring  rights  to  light  and  air  hy  mere  length  of  enjoy- 
ment. These  will  generally  be  found  to  be  at  variance  with 
the  English  law.  And  even  as  to  tlie  effect  to  be  given  to 
grants,  in  respect  to  the  enjoyment  of  liglit  and  air,  arising 
from  the  condition  and  circumstances  of  the  estates  to  which 
they  relate,  tlie  decisions  will  be  found  to  be  far  from  uni- 
form, and  some  of  them  not  very  satisfactory. 

The  reasons  generally  assigned  for  adopting  a  different 
rule  in  this  country,  as  to  prescriptive  rights  to  light  and 
air,  from  that  which  prevails  in  England  is,  that  the 
latter  *is  not  suited  to  the  condition  of  a  country  [*498] 
which  is  growing  and  changing  so  rapidly  in  all  its 
relations  of  property,  as  well  as  its  value  and  modes  of  en- 
joyment. And  in  this  is  witnessed  another  illustration  of 
the  influence  of  those  silent  agencies  which  are  constantly  at 
work  in  a  free  community,  in  adapting  and  giving  form  and 
consistency  to  tlie  rules  of  its  common  law,  to  meet  the  wants 
and  condition  of  the  body  politic.  And  it  seems  proper,  in 
this  light,  to  trace  briefly  the  course  of  decisions  in  the  sev- 
eral States,  whereby  the  law  has  become  settled,  and  to  point 
out  some  respects  wherein  the  same  differs  in  the  different 
States. 

It  will  be  found,  it  is  believed,  that  in  New  York,  Massa- 
chusetts, South  Carolina,  Maine,  Maryland,  Pennsylvania, 
Alabama,!  and  Connecticut  the  doctrine  of  gaining  a  pre- 
scriptive right  to  light  and  air,  by  mere  length  of  enjoyment, 
has  been  discarded ;  while  the  English  rule  in  this  respect  is 
retained  in  Illinois,  New  Jersey,  and  Louisiana. 

In  the  case  of  Mahan  v.  Brown,^  the  Chief  Justice,  and  in 
Banks  v.  American  Tract  Society ,3  the  Chancellor  of  New 
York,  examine  and  discuss  the  point  without  settling  it. 
But  in  Parker  v.  Foote,*  after  a  most  elaborate  examination 

1  Ward  V.  Neal,  37  Alab.  501  ;  post,  p.  *505. 

2  Mahan  v.  Brown,  13  Wend.  261,  263. 

3  Banks  v.  Am.  Tract  Society,  4  Sandf.  Ch.  438. 
*  Parker  v.  Foote,  19  Wend.  309. 


584  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

of  the  siil)ject,  and  also  in  Myers  v.  Gemmel,^  the  riile  seems 
to  be  finally  adopted  and  settled  as  above  stated. 

18.  In  Parker  v.  Foote  the  court,  in  showing  the  want  of 
analogy  between  ordinary  easements  of  ways,  watercourses, 
and  the  like,  where  the  enjoyment  by  which  they  are  gained 
worked  an  injury  to  those  against  whom  they  are  claimed, 
say :  "  But  in  the  case  of  windows  overlooking  the  land  of 
another,  the  injury,  if  any,  is  merely  ideal  or  imaginary. 
The  light  and  air  which  they  admit  are  not  the  subjects  of 

property  beyond  the  moment  of  actual  occupancy, 
[*499]   and  for  ^overlooking  one's  privacy  no  action  can  be 

maintained.     The  party  has  no  remedy  but  to  build 

on  the  adjoining  land  opposite  the  offensive  window 

In  the  case  of  lights,  there  is  no  adverse  user,  nor  indeed  any 
use  whatever  of  another's  property,  and  no  foundation  is  laid 
for  indulging  any  presumption  against  the  rightful  owner. 
....  There  is,  I  think,  no  principle  upon  which  the  mod- 
ern English  doctrine  on  the  subject  of  lights  can  be  supported. 
It  is  an  anomaly  in  the  law.  It  may  do  well  enough  in 
England,  but  it  cannot  be  applied  in  the  growing  cities  and 
villages  of  this  country  without  working  the  most  mischiev- 
ous consequences.  It  has  never,  I  think,  been  deemed  apart 
of  our  law,  nor  do  I  find  that  it  has  been  adopted  in  any  of 
the  States."  2 

19.  In  Myers  v.  Gemmel  the  reasoning  of  the  court  in 
Parker  v.  Foote  is  approved,  and  it  was  further  held,  that,  if 
one  having  a  dwelling-house  opening  upon  a  vacant  city  lot 
lease  the  dwelling-house,  he  is  not  thereby  prevented  from 
erecting  a  house  upon  the  vacant  lot,  although  it  occupy  the 
whole  space  and  darken  the  windows  opening  upon  it  in  the 
house  so  leased.  It  was  not  held  to  be  in  derogation  of  his 
own  grant,  since  the  law  attaches  no  right  of  enjoyment  of 
light  as  an  incident  to  the  occupation  of  an  estate,  unless  it 
exists  in  the  form  of  a  dedication  to  groups  or  collections  of 

1  Myers  v.  Gemmel,  10  Barb.  537. 

'^  Sec  Riuk-lifry.  Mayor,  &c.,  4  Comst.  195,  200. 


Sect.  6.]     EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIE.  585 

houses  partaking  of  the  character  of  a  public  easement. 
Thus  the  court  put  the  case  of  buildings  built  around  a 
court,  with  an  open  space  for  light  and  air,  witli  a  common 
entrance  to  the  same,  and  open  for  all  the  tenants  of  these 
houses,  and  express  an  opinion  that  it  would  be  held  that 
the  owner  who  appropriated  the  space  dedicated  it  for  the 
benefit  of  all  the  tenants.^ 

In  Banks  v.  American  Tract  Society,  where  the  plaintiff 
was  induced  by  the  adjacent  owner  to  remove  a  part  of  his 
building,  so  as  to  enjoy  light  for  the  same*from  an 
open  *space  between  that  and  the  building  of  the  [*500] 
defendant,  and  the  latter  then  began  to  erect  a  wall 
within  this  open  space,  which  would  darken  the  windows  in 
the  plaintiff's  house,  the  Court  of  Chancery  granted  an  in- 
junction to  restrain  such  erection.^ 

20.  In  Massachusetts  it  has  not  been  till  recently  that  the 
full  determination  of  the  question  of  prescriptive  right  to 
light  was  reached.  In  Story  v.  Odin,  where  the  action  was 
for  an  obstruction  to  the  plaintiff's  lights,  the  case  turned 
upon  the  effect  of  a  sale  by  one  of  a  house  adjoining  an  open 
space  of  land  belonging  to  him,  and  over  and  across  which  it 
derived  its  light  and  air,  the  court  say  :  "  This  grant  being 
without  any  exception  or  reservation  of  a  right  to  build  on 
the  adjacent* ground,  or  to  stop  the  lights  in  the  building 
which  they  sold,  it  is  clear  the  grantors  themselves  could 
not  afterwards  lawfully  stop  those  lights,  and  thus  defeat  or 
impair  their  own  grant.  As  they  could  not  do  this  them- 
selves, so  neither  could  they  convey  a  right  to  do  it  to  a 
stranger,"  ^  and  they  refer  to  Palmer  v.  Fletcher  and  Ros- 
well  V.  Pry  or  ^  with  approbation. 

In  Atkins  v.  Chilson,  where  the  point  was  made  by  the 
counsel,  and  referred  to  by  the  court,  it  was  left  wholly  un- 

1  See  also  Palmer  v.  Wetmore,  2  Sandf.  316. 

2  Banks  v.  Am.  Tract  Society,  4  Sandf.  Ch.  438,  470. 

8  Story  V.  Odin,  12  Mass.  157.     See  also  Grant  v.  Chase,  17  Mass.  443; 
Thurston  v.  Hancock,  12  Mass.  221. 
*  Koswell  V.  Pryor,  anle,  pi.  9. 


686  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  IV. 

settled,  as  the  case  turned  upon  another  question  than  the 
prescriptive  right  to  enjoy  light  by  one  tenement  over  and 
across  an  adjacent  one,  though  the  court  say,  that  up  to  tliat 
time  (1844)  "  the  tendency  of  our  decisions  has  been  the 
other  way  "  from  those  of  New  York  and  Connecticut. ^ 

In  the  Fifty  Associates  v.  Tudor,  the  court,  in  reference  to 
the  question  whether  the  owner  of  a  city  tenement  having 
windows  opening  upon  the  land  of  another,  and  enjoy- 
ing the  light  therefrom  for  twenty  years,  acquires 
[*501]  *thcrcby'an  absolute  right  to  the  continued  enjoy- 
ment of  the  same,  say  :  "  Upon  the  question,  we 
think  there  has  been  no  direct  judicial  decision  in  this  Com- 
monwealth. ThQ  general  rule  of  the  common  law  seems  to 
have  been  in  favor  of  the  affirmative  of  the  question."  This 
was  in  1856.  But  the  court  held,  in  that  case,  that  the 
wall  under  consideration  was  not  near  enough  to  the  win- 
dow said  to  be  obstructed,  within  the  rule  laid  down  in 
Back  V.  Stacey,  above  cited,^  to  constitute  "  a  substantial 
privation  of  light,"  so  that  the  main  question  remained  still 
unsettled.^ 

In  Collier  v.  Pierce  the  question  referred  only  to  how  far 
one  may  acquire  an  easement  of  light  from  being  the  gran- 
tee of  a  tenement  which,  while  in  the  possession  of  the 
grantor,  enjoyed  the  benefit  of  light  over  the  same  grantor's 
other  land.  In  that  case,  the  parcels  owned  by  the  plaintiff" 
and  defendant  respectively,  were  offered  for  sale  at  auction, 
in  lots  designated  by  metes  and  bounds,  and  were  sold  on 
the  same  day.  The  plaintiff's  lot  was  bid  off  first,  and  his 
deed  was  prior  in  time.  But  no  reference  to  light  or  air  was 
expressed  in  the  deeds.  The  court  say,  the  sale  was  of  the 
nature  of  a  partition  of  the  estate  rather  than  of  a  grant  by 
one  proprietor  of  a  part  of  his  estate,  retaining  to  himself 
another  part.  And  inasmuch  as  the  case  did  not  find  that 
the  enjoyment  of  tlie  light  through  the  window  in  question 

1  Atkins  V.  Chilson,  7  Mete.  398,  403. 

2  Back  V.  Stacey,  2  Carr.  &  P.  465. 

3  Fifty  Associates  v.  Tudor,  6  Gray,  255. 


Sect.  C]     EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  587 

was  necessary  to  the  convenient  enjoyment  of  the  plaintiff's 
estate,  the  court  held  that  the  easement  did  not  pass  by 
construction.  And  they  liken  it,  in  principle,  to  the  case  of 
Johnson  v.  Jordan.^ 

But  in  Carrig  v.  Dee  (in  18G0)  the  court  say  that  they 
"  are  of  opinion  that  the  plaintiff  acquired  no  right  to  the 
use  of  air  and  light  coming  laterally  to  his  windows  over  the 
vacant  lot  of  the  defendant,  though  continued  for 
twenty  *years  before  the  statute  (1852,  c.  144)  toolc  [*502] 
effect.  And  that  the  window  on  hinges,  swinging 
outwards  over  the  defendant's  land,  did  not  constitute  such 
adverse  possessory  use  of  the  adjoining  land  as  to  make  any 
difference  in  principle."  ^ 

The  law  may,  therefore,  be  considered  as  now  settled  in 
Massachusetts,  both  as  a  common-law  rule  and  as  a  statutory 
provision,  adversely  to  any  prescriptive  claim  to  light  and  air 
as  an  easement.  And  the  tendency  of  the  cases  seems  to  be, 
that  no  such  right  would  pass  by  the  mere  grant  of  a  dwell- 
ing-house having  windows  looking  out  upon  the  grantor's 
other  land,  unless  such  enjoyment  of  light  should  be  so  far 
necessary  to  the  enjoyment  of  the  house,  that  if  the  grantor 
were  to  build  upon  such  vacant  land  he  would  virtually 
deprive  the  owner  of  the  means  of  enjoying  what  he  had 
sold  him. 

21.  In  Maine  the  question  arose,  and  was  decided  in  1847. 
The  court,  in  a  full  analysis  of  the  cases  more  directly  bear- 
ing upon  the  point,  deny  that  the  common  law  originally 
contained  the  principle  upon  which  the  modern  English 
decisions  rest.  And  it  is  now  settled,  that  both  the  statute 
of  that  State  and  the  common  law  there  are  alike  adverse  to 
the  acquisition  of  an  easement  of  light  in  favor  of  a  tenement, 
by  its  having  enjoyed  it  over  and  across  another's  land  for 
more  than  twenty  years.^ 

1  Collier  v.  Pierce,  7  Gray,  18  ;  Johnson  v.  Jordan,  2  Mete.  234. 

2  Carrig  w.  Dec,  14  Gray,  583.     See  also  Rogers  v.  Sawin,  10  Gray,  376  ;  Paine 
».  Boston,  4  Allen,  109. 

3  Pierre  v.  Fernald,  26  Me.  436. 


688  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Ch.  IV. 

22.  TliG  statement  of  the  law  of  Connecticut  upon  this 
point,  as  being  adverse  to  a  prescriptive  right  to  light  and 
air,  is  based  upon  the  reasoning  of  the  court  in  Ingraham  v. 
Hutchinson,  although  it  was  not  the  point  directly  raised  in 
the  case.  And  the  Statute  of  the  State  sustains  that  doc- 
trine.^ 

23.  In  Maryland  tlie  question  arose  in  the  case  of  Cherry 

V.  Stein.  The  court  expressly  adopt  the  reasoning 
[*503]   in  Parker  *v.  Foote,  above  cited,  and  deny  that  the 

English  law,  as  to  prescriptive  right  to  light  and  air, 
prevails  in  Maryland.  And  as  to  the  point  that,  if  one 
owning  a  house  whose  windows  open  upon  a  vacant  piece  of 
land  belonging  to  him  sell  the  house  without  reservation,  he 
would  not  be  at  liberty  to  build  upon  the  vacant  lot  so  as  to 
obstruct  the  light  of  those  windows,  the  court,  without  either 
affirming  or  disaffirming  the  proposition,  say  :  "  That  princi- 
ple is  only  applicable  where  the  vendor  of  the  house  having 
the  lights  was,  at  the  time  of  sale,  not  only  owner  thereof, 
but  liliewise  owner  of  the  adjacent  vacant  lot."  And  add  : 
"  Now  it  might  be  conceded  that  the  doctrine  of  the  cases 
referred  to  is  the  law  of  Maryland,  and  still  it  would  not 
sustain  the  appellant's  claim  to  have  his  lights  protected  by 
injunction."  ^ 

24.  In  one  of  the  reported  cases  of  the  courts  of  South 
Carolina,^  the  doctrine  of  the  English  law  as  to  prescriptive 
rights  of  light  and  air  is  assumed  to  be  the  law  of  that 
State.  But  in  a  subsequent  and  more  fully  considered 
case*  the  doctrine  was  discarded,  and  denied  to  be  the  law 
there. 

In  the  case  last  cited  the  subject  is  examined  at  consider- 
able length,  and  its  analogies  considered.    And  among  them 

1  Ingraham  v.  Hutchinson,  2  Conn.  584;  Stat,  of  Conn.  Comp.  1854,  tit.  29, 
c.  1,  H8,  ]).  6.3G. 

^  Cherry  v.  Stein,  11  Md.  1,  24,  overruling  the  doctrine  in  Wright  v.  Freeman, 
5  Harr.  &  J.  477. 

8  M'Cready  r.  Thomson,  Duilley,  131. 

*  Napier  v.  Bulwinklc,  5  liidi.  311. 


Sect.  6.]     EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  589 

the  court  remark  :  "  The  same  distinctions  would  prevent 
the  acquisition  of  an  easement  in  tlie  shade  of  a  tree  which 
stands  on  his  neighbor's  land  near  his  boundary,  or  of  an 
easement  to  have  continued  the  protection  against  winds 
which  a  neighbor's  forest,  or  a  hill  on  his  land,  had  long 
afforded  to  another's  orchard."  ^ 

25.  Tlie  subject  has  been  repeatedly  brought  before  the 
courts  of  Pennsylvania.     But  it  will  be  necessary  to  refer  to 
only  two  or  three  of  these  cases.     In  Hay  v.  Ster- 
rett  (1834)  *  Rogers,  J.  says :  "  The  doctrine  of  the   [*504] 
English  books  in  respect  to  ancient  lights  is  not  very 

well  understood   in   this  country I  am  not  aware 

that  any  case  has  been  ruled  in  this  State  in  whicli  the 
principle  has  been  recognized.  It  should  be  introduced 
with  caution."  2 

In  Haverstick  v.  Sipe  (1859),  Lawrie,  C.  J.  says:  "It 
has  never  been  considered  in  this  State  that  a  contract  for 
the  privilege  of  light  and  air  over  another  man's  ground 
could  be  implied  from  the  fact  that  such  a  privilege  has  been 
long  enjoyed."  ^ 

In  Maynard  v.  Esher,*  while  the  court  assume  the  rule  to 
be,  that  if  a  man  sells  a  hoiise  with  windows  looking  out 
upon  his  other  vacant  land,  he  would  not  be  at  liberty  to 
build  upon  his  other  land  so  as  to  obstruct  these,  they  limit 
the  doctrine  to  cases  where  the  grantor,  at  the  time  of  sale, 
owns  both  estates.  And  they  adopt  the  doctrine  stated  by 
the  court  in  the  case  of  Collier  v.  Pierce,  above  cited,°  that 
where  the  two  estates  are  conveyed  at  the  same  time  to  dif- 
ferent purchasers,  no  easement  in  favor  of  one  or  servitude 
upon  the  other  in  respect  to  light  and  air  passes  with  the 
estates.  In  that  case,  lots  Nos.  6  and  7  were  sold  at  the 
same  auction.     No.  6  was  a  vacant  lot,  adjoining  No.  7,  a 

1  Napier  v.  Bulwinkle,  5  Rich.  324. 

2  Hay  V.  Stcrrett,  2  Watts,  331. 

3  Haverstick  v.  Sipe,  33  Penn.  St.  368,  371. 
*  Maynard  ».  Esher,  17  Penn.  St.  222,  226. 
5  Collier  V.  Pierce,  7  Gray.  1 8. 


590  THE   LAW   OF   EASEMENTS   AND    SERVITUDES.         [Cn.  IV. 

dwelling-house.  No.  6  was  bid  off  first,  and  sold  "  free  of 
encumbrances."  The  other  lot  was  bid  off  within  five  min- 
utes of  the  first,  and  the  memorandum  of  the  sale  signed 
immediately  by  the  parties.  The  court  held,  that  if  the 
sales  were  to  be  taken  as  simultaneous,  neither  lot  would 
be  servient  to  the  other.  And  if  priority  of  sale  affected  the 
question,  it  was  in  favor  of  the  purchaser  of  No.  6. 

26.  So  far,  therefore,  as  weight  of  authority  both  English 
and  American  goes,  it  would  seem  that,  if  one  sell  a  house, 

the  light  necessary  for  the  reasonable  enjoyment 
[*505]   whereof  is  *derived  from  and  across  adjoining  land, 

then  belonging  to  the  same  owner,  the  easement  of 
light  and  air  over  such  vacant  lot  would  pass  as  incident  to 
the  dwelling-house,  because  necessary  to  the  enjoyment  there- 
of;  but  that  the  law  would  not  carry  the  doctrine  to  the  se- 
curing of  such  easement  as  a  mere  convenience  to  the  granted 
premises.^ 

27.  The  cases  where  the  English  doctrine  of  prescriptive 
rights  to  light  and  air  is  sustained  are  Gerber  v.  Grabel  in 
Illinois,^  Robeson  v.  Pittenger  in  New  Jersey,^  Durel  v. 
Boisblanc  in  Louisiana ;  *  and  to  these  may  be  added  the 
case  of  Eay  v.  Lynes  in  Alabama,-^  although  now  overruled.^ 

In  Robeson  v.  Pittenger  considerable  stress  is  laid  upon 
the  fact  that  the  house  was  built  by  the  owner  of  both 
estates,  that  the  windows  had  long  enjoyed  the  light  over 
the  vacant  land,  and  that  the  house  was  first  granted  by  the 
original  owner  of  the  two  estates. 

In  Ray  v.  Lynes  the  court,  to  an  application  for  an  injunc- 
tion to  placing  a  shop  which  partially  obscured  the  light  of 
recent  windows,  say  :  "  The  foundation  of  this  right  is  the 

1  S',c  also  Biddlc  v.  Ash,  2  Ashin.  211,  222  ;  Durel  v.  Boisblanc,  1  La.  Ann. 
407  ;  Lampman  v.  Milkes,  21  N.  Y.  505  ;  Story  v.  Odin,  12  Mass.  157. 

2  Gerher  v.  Grabel,  16  111.  217. 

•^  Ilobeson  v.  Pittenger,  1  Green,  Ch.  57,  64. 

*  Durel  V.  Boisblanc,  1  La.  Ann.  407. 

6  Ray  V.  Lynes,  10  Ala.  63. 

c  Ward  v.  Ncal,  35  Ala.  602 ;  s.  c,  37  Ala.  501  ;  ante,  p.  *498. 


Sect.  6.]     EASEMENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  591 

privation  of  an  ancient  privilege,  so  long  enjoyed  as  to  be- 
come a  right.     Such  is  not  the  fact  here." 

28.  In  United  States  v.  Appleton,  Story,  J.  recognizes  the 
doctrine  as  in  force,  that  if  one  owns  a  store  or  dwell- 
*ing-house  whose  doors  or  windows  open  upon  his   [*506] 
own  land,  and  he  sells  the  building,  "  there  can  be 

no  doubt  that  the  grant  carries  with  it  the  right  to  the  en- 
joyment of  the  light  of  those  windows,  and  that  the  grantor 
cannot  by  building  on  his  adjacent  land  entitle  himself  to 

obstruct   the  light   or  close  up   the  windows It   is 

strictly  a  question  what  passes  by  the  grant Their 

grant  carried  by  necessary  implication  a  right  to  the  door 
and  window,  and  the  passage  as  it  had  been,  and  as  it  then 

was,  used It  is  observable  that  in  this  case  reliance 

is  placed  on  the  language  of  the  grant,  '  with  all  ways,'  &c. 
But  this  is  wholly  unnecessary,  for  whatever  are  properly  in- 
cidents and  appurtenances  of  the  grant  will  pass  without  the 
word  '  appurtenances,'  by  mere  operation  of  law."  ^ 

29.  An  instance  was  referred  to,  in  another  connection,  in 
the  case  of  Hills  v.  Miller,  of  an  easement  of  light  and  pros- 
pect being  gained  by  construction  of  the  terms  of  a  grant.^ 
In  that  case  plaintiff  bought  the  land  which  Miller  had  pur- 
chased of  one  B.  A  lot  of  land  in  front  of  it  was  by  agree- 
ment of  B.  to  be  always  kept  open,  and  he  gave  Miller  a  bond 
to  that  effect,  of  which  Miller  informed  the  plaintiff  when  he 
sold  him  the  house-lot  in  question.  It  was  held  that  this 
created  an  easement  of  light  and  prospect  over  this  vacant 
lot,  which  run  with  all  and  every  part  of  the  land  purchased 
of  B.,  and  it  was  not  in  Miller's  power  to  release  or  affect  the 
plaintiff's  right  to  enjoy  this  easement. 

30.  Among  the  rights  which  are  necessary  to  the  enjoy- 
ment of  tenements,  and  which  it  had  been  held  may  be  ac- 

1  United  States  v.  Appleton,  1  Sumn.  492,  502.  See  the  general  subject 
treated  of,  3  Kent,  Coram.  448.  See  Parker  v.  Nightingale,  6  Allen,  341,  & 
Cases  cited.     See  also  ante,  p.  *63,  pi.  44. 

2  Hills  r.  Miller,  3  Paige,  254,  257  ;  Whitney  v.  Union  Railway  Co.,  11  Gray, 
359  ;  2  Washb.  Eeal  Prop.  33.     See  ante,  pp.  90  -  97. 


592  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cii.  IV. 

quired  by  long  enjoyment  in  tlie  nature  of  easements,  is  that 
of  the  owner  of  a  wijidmill  to  the  use  of  the  wind  and  air 
over  adjacent  lands,  and  for  an  obstruction  of  this 
[*507]  *by  the  erection  of  walls  or  buildings  upon  the  ad- 
jacent land  an  action  will  lie.^ 

31.  On  the  other  hand  the  right  freely  to  enjoy  pure  air 
is  an  incident  to  property  in  houses  designed  for  dwelling 
or  occupation  by  man.  But  a  right  to  carry  on  a  noisome 
trade  may  be  acquired  by  as  long  enjoyment  as  twenty 
years,  as  against  the  proprietor  of  an  estate  thereby  injurious- 
ly affected.  And  if  one  erect  his  house  within  the  influence 
of  a  tanyard  upon  the  atmosphere,  for  instance,  he  cannot 
complain  that  its  occupation  is  thereby  rendered  unpleasant.^ 

Questions  have  arisen  as  to  what  would  be  such  a  tainting 
or  corrupting  the  air  by  one  man  as  to  give  another  a  right 
of  action  therefor,  on  the  ground  of  its  creating  a  private 
nuisance.  In  one  case  it  was  held  that  the  erection  of  a 
brewery  upon  adjacent  land,  and  burning  sea-coal  therein, 
was  not  a  nuisance,  but  erecting  and  using  a  privy  upon  the 
same  was.  The  declaration  averred  that' ho rrib lies  vapores 
et  imalubres  arose  from  these.  Doddridge,  J.  said,  among 
other  things,  "  If  a  man  is  so  tender-nosed  that  he  cannot 
endure  sea-coal,  he  ought  to  let  his  messuage."  ^ 

But  in  a  recent  case,  the  Vice-Chancellor  enjoined  a 
neighboring  owner  of  land  from  burning  brick  thereon 
near   a   dwelling-house   which   had   stood  for  many   years, 

1  Goodman  v.  Gore,  2  Rolle,  Abr.  704.  See  Winch.  3.  But  this  doctrine 
is  questioned,  and  overruled,  by  the  late  case  of  Webb  v.  Bird,  10  C.  B.  n.  s. 
269.     See  also  1  Am.  Law  Reg.  n.  s.  637 ;  s.  c,  13  C.  B.  n.  s.  841. 

It  is  stated  by  Foumel  that  windmills  were  not  subjects  embi-aced  within  the 
Roman  law  of  servitudes.  They  were  first  known  in  France  and  England  in 
the  eleventh  century,  having  been  brought  thither  by  the  Crusaders  on  their 
return  from  the  East.     2  Fournel,  Traite'  du  Voisinage,  222. 

2  Bliss  V.  Hall,  5  Scott,  .500;  Dana  v.  Valentine,  5  Mete.  8,  14  ;  EUiot^on  v. 
Fretham,  2  Bing.  n.  c.  134;  Commonwealth  v.  Upton,  6  Gray,  473;  3  Kent, 
Comm.  443;  Rex  v.  Cross,  2  Carr.  &  P.  483;  Flight  v.  Thomas,  10  Adolph. 
&  E.  590;  Kowbotham  v.  Wilson,  8  Ellis  &  B.  123,  143;  Jones  v.  Powell, 
Palm.  .5.'58. 

^  Jones  V.  Powell,  I'alm.  .'J3G. 


Sect.  G.]     EASEJIENTS  AND  SERVITUDES  OF  LIGHT  AND  AIR.  593 

because  *  the  smoke  cand  vapor  thereby  occasioned    [*o08] 
would  be  "  materially  interfering  witli  the  ordinary 
comfort,  physically,  of  human  existence,"  and  "  not  merely 
according  to  elegant  or  dainty  modes  and  habits  of  living."  ^ 

In  the  above  case  from  Palmer,  Doddridge,  J.  remarked, 
that,  if  the  brew-house  was  a  noisome  trade,  still  if  it  Avas  an 
ancient  one,  and  the  other  party  came  to  dwell  near  it,  he 
must  be  content  with  it  as  lie  found  it.^ 

And  although  one  may  acquire  a  right  to  the  enjoyment 
of  light  and  air  in  connection  with  an  estate,  it  is  always 
subject  to  the  reasonable  enjoyment  by  others  of  their  own 
property.  One  man's  fire,  for  instance,  may  make  the  air 
of  his  neighbor  less  sweet  and  pure,  but  the  latter  cannot, 
for  that  cause,  com||lain.  Nor  could  he,  if  his  neighbor,  by 
planting  a  tree  upon  his  own  land,  were  somewhat  to  ob- 
scure his  light,  or  obstruct  his  air  and  prospect.  But  one 
would  be  liable  for  carrying  on  a  manufacture  so  near  an- 
other as  to  render  the  air  thereby  sensibly  impure.''^ 

It  is  not  easy  to  draw  the  line  between  what  trade  or 
business  may  be  carried  on  upon  one's  premises  which  cause 
inconvenience  to  another,  and  what  may  not  Ipe  thus  prose- 
cuted. Thus  in  one  case,  the  court  held  that  it  was  not 
actionable  to  burn  brick  upon  one's  own  land,  thougli  the 
smoke  was  offensive  to  a  neighboring  dwelling-house,  if  the 
place  was  a  proper  one  and  convenient  for  the  business. 
"  The  common-law  right,"  says  Willis,  J.,  "  which  every  pro- 
prietor of  a  dwelling-house  has  to  have  the  air  uncontami- 
nated  and  unpolluted,  is  subject  to  this  qualification,  that 
such  interference  be  in  respect  of  a  matter  essential  to  the 
business  of  life,  and  be  conducted  in  a  reasonable  and  proper 
manner,  and  in  a  reasonable  and  proper  place."  ^  The  case 
of  Hole  V.  Barlow  was  afterwards  referred  to  with  approba- 

1  Walter  v.  Selfe,  4  De  Gex  &  S.  315,  322. 

2  Jones  V.  Powell,  Palm.  538. 

3  Emhrey  v.   Owen,  6  E.kcIi.  353 ;   Wood  v.   Waud,   3  Exch,   748,   781  ;  2 
Washb.  Real  Prop.  64. 

*  Hole  V.  Barlow,  4  C.  B.  n.  s.  334. 
38 


6'J4  THE    LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cii.  IV. 

tiou  hy  the  Barons  of  tho  Exchequer,  in  giving  an  opinion  in 
Stockport  Waterworks  v.  Potter,  but  it  seems  that  the  fact 
that  the  kiln  complained  of  in  that  case  was  used  for  a  tem- 
porary purpose,  might  have  had  some  influence  upon  the 
minds  of  the  court  in  holding  tliat  its  use  was  not  action- 
able. In  the  case  last  mentioned,  the  defendant  had  calico 
printing  works  upon  a  stream,  into  which  he  threw  materials 
used  in  his  dye  works,  which  contained  arsenic,  and  thereby 
poisoned  the  stream.  This  trade  was  a  proper  one  in  itself, 
and  he  carried  it  on  in  the  accustomed  manner,  but  tlicre  was 
no  evidence  as  to  its  being  a  reasonable  one  or  in  a  reasona- 
ble and  proper  place.  But  it  was  held,  tliat  he  had  no  right 
so  to  carry  it  on  as  to  poison  those  living  below  upon  the 
stream,  and  had  occasion  to  use  the  w§ter.  The  case  was 
decided  upon  the  general  policy  of  the  trade  being  noisome 
and  dangerous  to  the  public  health,  and  did  not  involve  any 
question  of  prescriptive  right  to  carry  it  on.^ 

82.  One  may  also  gain  a  negative  easement,  which  was 
originally  created  by  grant,  such  as  that  the  adjacent  owners 
should  not  carry  on  any  offensive  trade  or  trades  of  particu- 
lar kinds,  although  the  same  may  not  be  unlawful  as  being 
a  public  nuisance.  Thus  where  an  owner  of  several  lots  ad- 
joining each  other  inserted  a  covenant  in  the  deed  of  each 
of  the  purchasers  of  these  lots,  that  the  occupant  should 
not  carry  on  any  offensive  trade  thereon,  it  was  held  that 
any  one  of  these  purchasers  could  have  an  injunction  against 
any  other  owner  of  either  of  these  lots  who  should  under- 
take to  carry  on  such  kind  of  business  thereon.^  And  tlie 
court,  in  another  case,  after  referring  to  the  above  class 

of  cases,  add:  "When,  therefore,  it  appears,  by 
[*509]   *  the  fair  interpretation  of  tlie  words  of  the  grant, 

that  it  was  the  intent  of  the  parties  to  create  or  re- 
serve a  right,  in  the  nature  of  a  servitude  or  easement  in  the 
property  granted,  for  tlie  benefit  of  other  land  owned  by  the 

1  Stocki^ort  Water  Works  v.  Potter,  7  II.  &Norm.  160. 
-  Barrow  v.  Kicliard,  8  Piiigc,  .351. 


Sect.  7.]       MISCELLANEOUS   EASEMENTS    AND    SERVITUDES.  695 

grantor,  and  originally  forming,  with  the  land  conveyed,  one 
parcel,  such  right  sliall  be  deemed  appurtenant  to  the  land 
of  the  grantor,  and  binding  on  tliat  conveyed  to  the  grantee, 
and  the  right  and  burden  thus  created  will  respectively  pass 
to,  and  be  binding  on,  all  subsequent  grantees  of  the  respec- 
tive parcels  of  land,"  ^ 


SECTION  VII. 

MISCELLANEOUS   EASEMENTS   AND    SERVITUDES. 

1.  Easement  to  pile  logs,  &c.  for  the  use  of  a  mill. 

2.  Easement  of  placing  boxes,  &c.  in  using  a  store. 

3.  Custom  of  turning  teams  on  land  in  ploughing. 

4.  Easement  of  drying  clothes  in  another's  yard. 
6.  Prescriptive  right  to  dockage  and  wharf. 

6.  Easement  of  carrying  away  iron  ore,  &c. 

7.  Easement  of  taking  sea-weed  on  a  beach. 

8.  Right  to  throw  rubbish  in  a  stream. 

9.  Reservation  of  grass  and  herbage,  a  servitude. 

10.  Easement  of  a  right  of  common. 

11.  How  far  common  of  cutting  timber,  &c.  is  apportionable. 

12.  Possession  of  the  two  estates  suspends  easement  of  common. 

13.  Easement  of  a  town  to  dig  stone  on  another's  land. 

14.  Easement  of  a  town  to  use  parish  buildings. 

15.  Right  to  lay  gas-pipe  an  easement  in  a  gas  company. 

16.  Servitude  of  maintaining  fences  to  land. 

17.  Pew  rights  and  burial  rights,  how  far  easements., 

1.  Among  the  casements  which  have  been  recognized  by 
the  courts  of  common  law,  as  known  to  and  governed  by  its 
rules,  is  that  of  piling  logs  and  lumber  for  the  accommoda- 
tion of  a  saw-mill,  on  land  to  be  used  as  a  yard  for  such 
mill.2 

*2.    So  is  that  of  placing  boxes  or  bales  of  mer-   [*510] 
chandise,  for  the  purpose  of  drawing  them  into  a 
store  by  a  windlass  over  a  way.     And  the  same  is  true  of 

1  Whitney  v.  Union  Railway  Co.,  11  Gray,  3.59;  2  Washb.  Real  Prop.  33. 
See  also  Plills  v.  Miller,  3  Paige,  254,  2.57  ;  ante,  p.  *63,  pi.  44. 

2  Gurney  v.  Ford,  2  Allen,  576  ;  Pollard  v.  Barnes,  2  Gush.  191. 


696  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Ch.  IV. 

a  right  to  swing  shutters  of  a  store,  and  the  like,  over  a 
way.i 

3.  So  adjoining  owners  of  unenclosed  lands  may  acquire, 
by  custom,  a  right  to  turn  their  teams,  in  ploughing,  upon 
each  other's  land,  the  same  being  a  reasonable  and  useful 
custom.^ 

4.  So  one  may  have  an  easement  to  hang  clothes  to  dry 
in  another's  yard,  or  use  a  neighboring  wall  to  support  a 
clothes-line  for  that  purpose.^ 

5.  So  one  may  acquire  a  prescriptive  right  of  dockage 
upon  another's  land,  or  of  bringing  vessels  up  to  a  wharf 
and  laying  them  along  the  side  of  the  same.* 

One  may  gain  a  right  to  maintain  a  wharf  below  low- 
water  mark  by  prescription  against  the  Commonwealth,  but 
the  owner  could  not  thereby  acquire  any  exclusive  rights 
beyond  the  limits  of  the  wharf  itself.^ 

6.  So  one  may  have  an  easement  to  dig  and  carry  away 
the  iron  ore  in  a  certain  parcel  of  land.  Such  a  right  is  an 
incorporeal  hereditament,  and  can  only  be  erected  by  grant 
or  reservation  in  a  deed.'''  The  distinction  and  limitation  as 
to  this  right,  as  adopted  by  the  courts  of  Iowa,  seem  to  be 
this.  If  one  by  parol  license  grant  a  mine  to  another,  who 
goes  on  and  works  it,  and  expends  money  in  structures,  &c., 
for  carrying  it  on,  and  in  excavations,  and  be  expelled  with- 
out notice  and  compensation  for  such  expenditures,  he  may 
recover  possession  of  the  mine  by  a  writ  of  ejectment.  If  the 
grant  be  of  a  privilege  to  dig  ore,  it  is  regarded  as  an  incor- 
poreal hereditament,  and  ejectment  would  not  lie."  But  if 
there  be  an  open  mine  upon  premises  in  possession  of  a  ten- 

1  Kichiinlson  i\  Pond,  15  Gray.  See  also  United  States  v.  Applcton,  1 
Sumn.  492  ;  O'Linda  v.  Lothrop,  21  Pick.  292,  297. 

-  Jones  V.  Pcrcival,  .5  Pick.  485  ;  Pain  v.  Patrick,  3  Mod.  289,  294. 
^  Drewcll  v.  Towler,  3  Bariiew.  &  Ad.  735. 
*  Sargent  v.  Ballard,  9  Pick.  251 . 

6  Gray  v.  Bartlett,  20.  Pick.  186. 

c  Arnold  i;.  Stevens,  24  Pick.  109. 

7  Beatty  i'.  Gregory,  17  Iowa,  IIG;  Bush  v.  Sullivan,  3  Green  (Iowa)  344. 


Skct.  7.]       MISCELLANEOUS   EASEMENTS    AND    SERVITUDES.  597 

ant,  ho  would  have  a  riglit  to  work  it,  whether  he  he  tenant 
for  Hfe,  years,  or  a  single  year.^ 

7.  One  may  have  a  right  to  take  sea-weed  upon  a  particu- 
lar beach,  provided  he  can  claim  it  as  appurtenant  to  a  part 
of  an  estate  once  embracing  the  beach.  If  such  is  granted 
as  appurtenant  to  an  estate,  it  cannot,  however,  be  separated 
from  the  land  to  which  it  is  appurtenant  so  as  to  become  a 
right  in  gross,  under  which  one  may  gather  such  weed  for 
purposes  of  sale.  Such  conveyance  of  the  right  to  a  stranger 
would  either  be  a  void  grant,  or  extinguish  the  right.  But 
no  change  in  the  beach  itself,  so  long  as  one  remains,  can 
affect  the  right  to  the  sea-weed  accumulating  upon  it  which 
one  has  acquired  as  an  easement.  On  the  other  hand,  it  is 
not  requisite  that  the  owner  of  the  land  to  which  the  right  is 
appurtenant  should  exercise  it  solely  in  reference  to 
*expenditure  or  use  upon  that  particular  land.  He  [*511] 
may  when  it  is  gathered,  use  it  upon  that  or  other 
land,  or  may  sell  it  to  others.'^ 

Ordinarily  the  sea-weed  which  is  thrown  upon  the  flats, 
islands,  or  mainland  bordering  upon  the  sea  belongs  to  the 
owner  of  the  land.-^  But  the  right  to  take  it  may  be 
acquired  by  prescription,  or  otherwise,  as  an  incorporeal 
hereditament.^  But  whether  it  can  be  gained  in  gross, 
irrespective  of  the  ownership  of  any  estate  to  which  it  is 
appurtenant,  does  not  seem  to  be  well  settled.  In  one  case-^ 
the  court  say  such  a  right  may  be  personal,  and  a  man  may 
claim  it  by  long  continued  enjoyment  by  himself  and  his 
ancestors  or  grantors,  while,  in  the  case  of  Phillips  v.  Rhodes 
(^sup.^,  the  court  express  doubt  if  it  can  be  acquired  as  a 
personal  one,  independent  of  a  que  estate.  And  the  case  of 
Weekly  v.  Wildman  is  referred  to,  where  Treby,  C.  J.  says  of 
a  right  of  common  :  "  Although  a  right  of  common  sans 

1  Freer  v.  Stotenbur,  36  Barb.  641. 

2  riiillips  V.  Rhodes,  7  Mete.  322. 

'^  Emans  v.  Turnbull,  2  John.  313;  Hill  v.  Lord,  48  Maine,  96  ;  Phillips  v. 
Rhodes,  7  Met.  323. 

*  Hill  V.  Lord,  sup.  ^  Hill  v.  Lord,  sup. 


598  THE   LAW    OF   EASEilENTS   AND   SERVITUDES.  [Cii.  IV. 

nombre  may  be  granted  at  this  day,  yet  such  grantee  cannot 
grant  it  over.^  But  the  case  of  Goodricli  v.  Burbank^  may 
perhaps  be  thought  to  favor  the  idea  of  an  independent 
property  in  such  an  easement  as  that  of  taking  sea-weed. 

8.  So  one  may  acquire  a  right  by  prescription  to  throw 
the  washings  of  sand  and  rubble  made  in  working  a  tin-mine 
into  a  stream  running  through  another's  land,  though  he 
thereby  cause  the  water  to  overflow  the  other's  land/^ 

9.  A  reservation  in  a  grant  of  land  of  the  '•'  grass,  herb- 
age, feeding,  and  pasturage,"  gives  the  grantor,  and  all 
persons  representing  him,  a  right  to  enter  with  their  cattle 
and  depasture  the  land  as  a  servitude  or  easement  created 
by  the  acceptance  of  the  deed  containing  such  reservation.^ 
But  it  seems  that  one  may  not  prescribe  for  the  exclusive 
use  of  the  herbage  upon  another's  land  as  appurtenant  to 
his  own  land,^ 

10.  A  right  of  common  in  another's  land  is  also  treated 
as  an  easement.'^ 

But  so  far  as  this  doctrine  is  applicable  to  this  country,  it 
is  not  believed  to  be  necessary  to  do  anything  more  than 
briefly  notice  the  general  rules  in  respect  to  the  more 
familiar  kinds  of  common. 

In  New  York,  lands  may,  by  statute,  be  suffered  to  lie 
common  by  any  one  who  chooses  not  to  fence  them,  but 
it  does  not  create  a  common-law  right  of  common  in  the 
same  in  favor  of  third  persons.^ 

In  Illinois  there  are  lands  granted  as  commons  to  towns, 
hamlets,  and  villages,  and  by  law  always  to  remain  common 
to  the  inhabitants  of  such  town  or  village.  Lands,  accord- 
ingly, granted  by  the  French  government  and  confirmed  by 

1  Weekly  v.  Wililman,  1  Ld.  Raym.  407. 

2  Ante,  p.  *11,  pi.  12  a. 

^  Carlyon  v.  Lovcrinrr,  l  llurlst.  &  N.  784. 
*  Rose  V.  Bunn,  21  N.  Y.  27.5. 

5  Donnell  i'.  Clark,  19  Me.  174,  182. 

6  Per  Watson,  B.,  Rowbotham  v.  Wilson,  8  Ellis  &  B.  143;  Thomas  v. 
Marshfield,  10  Pick.  364  ;  Livin^^ston  v.  Ten  Brocck,  16  Johns.  14,  25. 

^  Perkins  v.  Perkins,  44  Barb.  134. 


Skct.  7.]       MISCELLANEOUS   EASEMENTS   AND   SERVITUDES.  599 

the  U.  States  to  the  inhabitants  of  the  village  of  C,  were 
held  to  be  for  the  use  and  enjoyment  of  such  only  as  were 
inhabitants  of  that  village,  and  could  not  be  conveyed  to 
others.  By  village  was  to  be  understood  a  small  assemblage 
of  houses  occupied  by  artisans  and  the  like.^ 

But  it  was  held  in  Missouri,  that  commons  belonging  to 
towns  in  that  State,  might  be  lost  to  the  public  by  an  adverse 
possession  in  an  individual  inhabitant  suflTiciently  protracted.'-^ 

In  Thomas  v.  Marshfield  the  question  arose  upon  a  claim 
for  compensation  for  taking  certain  land  for  public  use. 
The  court  say  :  "  There  seems  to  be  no  doubt  that  a  right  of 
common  of  pasture  is  such  a  title  in  the  land  as  may  sustain 
a  claim  for  compensation  under  the  statute.  A  commoner  is 
not  the  absolute  owner  of  the  soil,  but  he  has  a  special  and 

limited  interest  in  it He  (the  plaintiff  in  that  case) 

relies  on  two  titles  :  first,  a  title  by  prescri|>tion  to  a  right 
of  common  as  appurtenant  to  his  farm  ;  second,  a  title  by 
grant,"  &c. 

*A  common,  it  is  said,  imports  a  privilege  to  take  [*512] 
a  profit  in  common  with  many.  The  common  known 
in  this  country,  it  is  believed,  would  come  under  the  class  of 
what  is  appurtenant,  and  has  its  origin  in  grant.  And  of 
course  the  extent  of  the  right,  the  character  and  number  of 
animals  to  be  fed,  and  the  like,  must  be  regulated  by  the 
terms  of  the  grant  or  the  right  acquired  by  prescription. 
The  commoner  has  no  interest  in  the  soil  where  he  takes  his 
common.  And  if  he  purchases  the  land  in  which  he  has 
common,  it  will  operate  as  an  extinguishment  of  the  right  as 
being  any  longer  appurtenant  to  the  other  estate."^ 

11.  A  question  arose  in  Livingston  v.  Ten  Broeck,  whether 
a  common  of  "  cutting  and  hewing  timber  for  building  " 
could  be  apportioned  by  alienation  of  a  part  of  the  land  to 
which  it  is  appurtenant  ;  and  it  was  held  that  it  could  be. 

1  Hehert  v.  Lavalle,  27  111.  448. 

'■^  Funkhouser  v.  Lingkopf,  26  Mo.  453. 

^  Coin.  Dig.,  Common,  A,  C,  II,  L. 


GOO  THE   LAW    OF   EASEMExNTS   AND    SERVITUDES.         [Cii.  IV. 

But  in  that  case  Livingston  granted  a  certain  farm  to 
Wessels,  with  a  privilege  of  grazing  his  cattle,  and  of  cutting 
and  hewing  of  timber  for  building  or  firewood  on  the  manor, 
and  the  defendant  held  title  imder  Wessels.  The  owner  of 
the  granted  premises,  to  which  the  common  belonged,  con- 
veyed a  part  of  them  to  the  owner  of  the  manor,  out  of 
which  the  common  is  claimed,  so  that  there  was  a  unity  of 
title  to  a  part  of  the  two  estates  in  him,  and  the  question 
was  if  such  conveyance  did  not  extinguish  the  right  alto- 
gether, on  the  ground  that  the  party  having  this  right  could 
not,  by  releasing  a  part  of  the  land,  throw  an  increased 
burden  upon  the  remaining  part  of  the  land.  The  court 
held  that  it  operated  to  extinguish  the  right  altogether. 
"  There  would  be  an  extinguishment  of  the  right  of  common 
in  part,  by  the  unity  of  title  in  one  and  the  same  person  to 
part  of  the  land  entitled  to  common,  and  a  part  of  the  land 
out  of  which  common  is  to  be  taken,  and  then  the  principle 
applies,  that  if  common  appurtenant  be  extinct  in  part,  it  is 

entirely  gone."  The  question  turned,  it  will  be 
[*513]    *perceived,  upon  the  distinction  between  conveying 

a  part  of  the  right  of  common  by  conveying  a  part 
of  the  estate  to  which  it  belonged,  and  extinguishing  it  alto- 
gether.i 

12.  And  upon  the  same  principle,  if  the  one  having  a  right 
of  common  appurtenant  take  a  lease  of  a  part  of  the  estate 
out  of  which  he  has  the  right  of  common,  all  his  common 
shall  be  suspended  during  the  term.-^ 

But  where  a  right  of  common  has  been  extinguished  by 
unity  of  possession,  it  may  be  revived,  if  a  grant  be  made  of 
the  estate  which  had  previously  enjoyed  it,  "  with  all  common 
therewith  used  or  enjoyed."  But  it  is  in  the  nature  of  a  new 
grant.^ 

1  Livingston  v.  Ten  Broeck,  16  Johns.  14,  27  ;  Tirring-ham's  case,  4  Rep.  36  ; 
llothcrhann  v.  Green,  Cro.  Eliz.  593  ;  Com.  Dig.,  Common,  L;  Co.  Litt.  122  a; 
^Vild's  case,  8  Rep.  79. 

'^  Wild's  case,  supra;  Cora.  Dig.,  Common,  M. 

*  Com.  Dig.,  Common,  0  ;  Bradsliaw  v.  Eyre,  Cro.  Eliz.  570. 


Sect.  7.]       MISCELLANEOUS   EASEMENTS   AND    SERVITUDES.  GOl 

13.  A  riglit  of  easement  may  be  acquired  by  tlic  inhab- 
itants of  a  town  to  dig  stones  from  a  parcel  of  land  for  the  use 
of  such  persons  as  belong  to  the  town,  as  was  the  case  in 
Worcester  v.  Green,^  and  Green  v.  Putnam,^  where  the  pro- 
prietors of  a  township  voted  "  that  one  hundred  acres  ])c  left 
common  for  the  use  of  the  town  for  building-stones,"  It 
was  held  not  to  pass  the  fee,  but  merely  the  right  to  take  the 
stones  for  building  purposes,  that  interest  ])cing  in  the  town 
as  a  corporation,  in  trust  for  the  individual  inhabitants. 

There  may,  therefore,  be  a  trust  in  an  easement  in  lands 
in  the  same  manner  as  in  the  freehold  of  the  land  itself. 

14.  So  a  town  may,  by  adverse  user,  acquire  a  right  of 
easement  in  a  parish  meeting-house,  to  hold  public  meetings 
therein.  But  if  such  meetings  were  held  by  permission  of 
the  parish,  it  would  lay  no  foundation  for  such  a  claim.-^ 

15.  A  right  granted  by  charter  to  a  gas  company 

to  lay  *gas-pipcs  in  the  streets  of  a  city  is  an  ease-   [*514] 
ment,  and  not  a  mere  license.* 

16.  There  are  rights  in  respect  to  fences  which  tlie  owners 
of  lands  may  acquire  or  be  subject  to  by  prescription,  where- 
by one  may  become  liable  to  support  and  maintain  a  division 
fence  between  the  two  parcels  of  land,  or  a  particular  part 
thereof.  And  this  is  regarded  as  an  easement  in  favor  of 
the  one  estate,  and  a  servitude  Tipon  the  other. •'^ 

But  while  there  would  probaljly  be  little  diversity  in  ap- 
plying the  doctrine  of  prescription  as  to  fences  when  once 
established,  it  is  not  clear  that  all  courts  would  agree  as  to 
what  amounted  to  such  a  prescription.  Thus  it  seems,  from 
tlie  cases  stated  in  Vincr,  tliat  prescription  arises  in  cases 

1  Worcester  v.  Green,  2  Pick.  425. 

'■^  Green  v.  Putm.in,  8  Cash.  21. 

3  Medford  v.  Pratt,  4  Pick.  222. 

*  Providence  Gas  Co.  v.  Thurher,  2  R.  1.  1.5. 

5  Star  V.  Kookesby,  Salk.  3-35  ;  Boyle  v.  Tamiyn,  6  Barnew.  &  C.  .329 ;  Rust 
V.  Low,  6  Mass.  90  ;  Dyer,  29.")  b,  pi.  19  ;  Heath  v.  Ricker,  2  Me.  72  ;  Sury  v. 
Pigot,  Poph.  1G6;  2  Dane,  Abr.  658,  660;  Binney  v.  Hull,  5  Pick.  .50.3,  505; 
Thayer  v.  Arnold,  4  Mete.  589. 


602  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  IV. 

where  one  of  two  adjoining  owners,  and  those  under  whom 
he  claims,  "  have  used  to  make  it  (the  fence)  time  out  of 
mind,"  or  where  the  fence  between  two  closes  has  time  out 
of  mind  been  repaired  by  the  tenant  of  one  of  them.^ 

In  Rust  V.  Low,  svp.,  the  court  recognize  the  doctrine  of 
prescription  in  respect  to  maintaining  fences,  and  speak  of 
ancient  assignments  offence  viewers,  and  also  ancient  agree- 
ments made  by  tlie  parties  which  may  have  once  existed  and 
are  now  lost  by  lapse  of  time,  as  among  the  grounds  upon 
which  such  prescription  may  rest.  And  in  Binney  v.  Hull, 
sup.,  the  court  rely  upon  the  fact  as  establishing  prescrip- 
tion, that  the  party  and  his  ancestors  had  maintained  the 
fence  in  question  for  fifty-six  years,  at  the  commencement  of 
which  period  it  was  an  old  fence,  carrying  back  the  obliga- 
tion beyond  the  time  of  memory.  In  Adams  v.  Van  Alstyne, 
the  court  hold  that  there  may  be  a  valid  prescription  in  such 
cases.  "  Nor  do  I  doubt,"  says  the  Judge,  "  that  when  such 
a  prescription  is  established,  it  fastens  itself  upon  the  land 
charged  with  the  burden  and  in  favor  of  the  tenements  bene- 
fited by^it.  It  is  the  usual  case  of  a  servitude  in  lands,  the 
law  concerning  which  has  been  adopted  by  the  common  law 
from  the  civil  law,  and  every  part  of  the  premises  charged 
with  the  burden  called  the  servient  tenement,  is  as  much 
bound  as  the  whole  of  the  original  premises  were,  and  every 
part  of  the  dominant  tenement  is  entitled  to  claim  the  benefit 
of  the  charge  against  the  premises  bound."  But  under  the 
facts  of  that  case,  the  prescription  was  not  established.  The 
facts  were,  that  from  time  immemorial  there  had  been  a 
fence  between  the  farms  of  L.  and  H.,  the  western  half  had 
been  supported  by  H.  and  his  predecessors,  and  the  eastern 
half  by  L.  and  liis  predecessors.  Upon  the  death  of  H.,  his 
farm  was  divided  between  his  two  heirs,  the  west  half  going 
to  one  and  the  cast  to  the  other.  The  plaintilF  claimed 
under  L.,  and  the  defendant  under  one  of  those  heirs,  and 
the  (question  was  if  the  successors  of  L.  and  H.  were  bound, 

J    Viiier  Ah.  Fences  K.  p.  1G4,  lOG  ;  ->  Dune.  Ahr.  060. 


Sect.  7.]       MISCELLANEOUS   EASExMENTS   AND   SERVITUDES.  603 

by  prescription,  to  maintain  the  parts  of  the  fence  which 
their  predecessors  had  done.  But  the  court  held  that,  as 
each  of  the  original  proprietors  was  bound  to  maintain  half 
of  tlie  division  fence,  their  acts  in  so  doing  were  to  be  re- 
garded as  liaving  been  done  by  mutual  arrangement  and  not 
under  any  adverse  claim,  nor  any  acquiescence  by  cither  in 
any  encroachment  by  the  other,  and  when  new  owners  came 
into  possession  of  one  of  the  farms,  a  new  arrangement  or 
division  became  necessary,  since  there  was  no  ground  of 
prescription  of  grant  or  covenant  that  the  particular  half  of 
the  fence  should  be  perpetually  supported  by  either  of  the 
adjacent  owners.^ 

A  similar  doctrine  was  maintained  by  the  court  of  Connect- 
icut, as  to  the  effect  to  be  given  to  a  long-continued  custom 
or  usage  of  two  adjacent  proprietors  as  to  keeping  a  division 
fence  between  their  lands  in  repair.  If  done  by  mutual 
agreement,  it  does  not  run  with  the  land  like  a  covenant  to 
bind  third  parties  who  neither  knew  nor  concurred  in  the 
same.     It  does  not  sustain  a  prescription.^ 

But  if  a  grantor,  in  terms,  when  granting  land  by  deed, 
covenant  for  himself,  his  heirs  and  assigns,  to  fence  the 
premises,  it  would  be  a  covenant  which  runs  with  the  estate, 
and  binds  successive  owners.^ 

Where  one  is  bound  to  build  and  maintain  a  fence  be- 
tween his  own  and  an  adjoining  lot  of  land,  he  may  place 
one  half  of  it,  if  of  reasonable  dimensions,  upon  his  neigh- 
bor's land.^ 

At  common  law,  whenever  there  was  a  prescription  to 
fence,  it  was  enforced  by  a  writ  of  curia  claadenda,  sued  out 
by  him  in  whose  favor  it  existed,  against  him  who  was 
charged  with  the  support  of  sucli  fence,  in  which  he  could 
recover  damages  for  his  failure  to  make  or  maintain  the 
same.     But  when  bound  by  prescription  to  fence  his  close, 

1  Adams  v.  Van  Alstyne,  25  N.  Y.  232,  237. 
-  Wii<?lu  V.  Wright,  21  Con.  242. 
3  Easter  v.  L.  M.  R.  li.,  U  Ohio  St.  48. 
*  Newell  V.  Hill,  2  Mete.  180. 


604:  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cn.  IV. 

the  owner  was  not  required  to  do  this  against  any  cattle  but 
those  wliich  were  rightfully  in  the  adjoining  close. ^ 

And  in  this  connection  the  case  of  Rose  v.  Bunn  may  be 
referred  to,  where  it  was  held  that,  if  one  grant  another 
land,  reserving  the  right  of  pasturage  upon  the  land,  and 
afterwards  tlie  grantee  cultivates  any  part  of  it  for  the 
growth  of  a  crop  of  grain,  it  is  incumbent  upon  the  one  who 
sows  the  grain  to  protect  his  crop  by  fences  against  the  cattle 

of  the  one  who  owns  the  right  of  pasturage.^ 
[*515]  *17.  Rights  of  burial  in  churchyards,  and  pew 
rights  in  churches,  although  acquired  by  deed  of  a 
particular  lot,  or  pew,  are  only  easements  in  land  belonging 
to  the  religious  society  which  owns  the  church  and  church- 
yard. It  is  an  easement  in,  and  not  a  title  to,  a  freehold, 
and  is  to  be  understood  as  granted  and  taken  subject,  with 
compensation  of  course,  to  such  changes  as  the  altered  cir- 
cumstances of  the  congregation  or  the  neighborhood  may 
render  necessary. 

In  all  these  cases  supposed,  the  general  property  in  the 
house  and  land  is  in  some  society  or  body  politic,  and  the 
doctrine  as  to  burial  rights  does  not  apply  to  cases  where  the 
grave  is  in  a  separate  independent  cemetery.^ 

And  yet  the  interest  of  a  pew-holder  is  of  such  a  character 
that  he  may  have  trespass  qu.  cl.  against  any  one  who  shall 
enter  the  same  against  the  consent  of  the  owner,  on  any  of 
those  occasions  for  which  pews  are  designed  to  be  used. 
But  this  may  probably  be  referred  to  the  character  of  the 
property  in  them  which  has  been  given  by  the  statutes  of  the 
State  in  which  the  question  arose.^ 

1  Rust  V.  Low,  supra  ;  2  Dane,  Abr.  658,  GGO. 

'■^  Rose  V.  Bunn,  21  N.  Y.  279. 

The  subject  of  fences  is  also  regulated  by  statute  in  England,  and  in  the  several 
States  of  this  country ;  but  for  obvious  reasons  these,  as  well  as  the  cases  arising 
under  tliem,  have  been  purposely  omitted  in  this  work. 

"  Richards  v.  Dutch  Churcli,  32  Barb.  42;  Gay  v.  Baker,  17  Mass.  435; 
Daniel  v.  Wood,  1  Pick.  102  ;  Bryan  v.  Whistler,  8  Barnew.  &  C.  288?  Downey 
r.  Dee,  Cro.  Jac.  605. 

*  Jackson  V.  Rouiiseville,  5  Mete.  127. 


*CH AFTER    V.  [*516] 

OF  LOSS   OE  EXTINGUISHMENT   OF  EASEMENTS,  ETC. 

Sect.  1.  Effect  of  the  Unity  of  the  two  Estates. 

Sect.  2.  Effect  of  conveying  one  of  two  Estates  in  revivinp;  former  Ease- 
ments. 

Sect.  3.  Of  Changes  in  Estate  affecting  Rights  of  Easement. 

Sect.  4.  Of  Acts  of  Owners  of  Easements  affecting  Rights  to  the  same. 

Sect.  5.  Effect  of  abandoning  an  Easement. 

Sect.  6.  Effect  of  non-user  of  Easements. 

Sect.  7.  Effect  of  a  License  upon  an  Easement  when  executed. 

SECTION    I. 

EFFECT    OF   THE    UNITY    OF   THE    TWO    ESTATES. 

1.  Easements  extinguished  by  actual  or  constructive  release. 

2.  Unity  of  tlie  two  estates  operates  a  release. 

3.  The  unity  must  be  of  title  and  possession. 

4.  Such  unity  extinguishes  the  easement. 

5.  Ritger  v.  Parker.     Unity  in  mortgage  no  extinguishment. 

6.  No  extinguishment  if  title  to  one  of  the  estates  fails. 

7.  Hinchlifte  v.  Kinnoul.     Effect  of  unity  of  reversions. 

8.  Effect  of  destroying  the  easement  while  the  estates  are  iinited. 

1.  As  easements  may  be  acquired  by  actual  or  construc- 
tive grant  in  various  forms,  as  has  been  shown,  so  tliey  may 
be  surrendered,  lost,  or  extinguished  by  actual  or  constructive 
release.  Among  these  would  be  a  release  in  terms  by  deed 
by  the  owner  of  the  dominant  to  the  owner  of  the  servient 
estate.  It  is  hardly  necessary  to  illustrate  this  proposition 
by  decided  cases.     But  there  are  often  such  relations  in  the 


606  THE   LAW   OF   EASEMENTS    AND    SERVITUDES.  [Cii.  V. 

ownership  of  the  two  estates  as  will  have  the  same 
[*517]   effect  as  *a  direct  release,  which  may  require  a  word 

of  explanation.  Such  would  be  the  effect  of  a  union 
of  ownership  of  the  two  estates  in  one  person.  So  while 
there  are  various  acts  of  ownership  which  serve  as  evidence 
of  title  to  an  easement,  after  long  repetition,  there  are  acts , 
and  omissions  on  the  part  of  the  owner  of  the  dominant 
estate  which  are  deemed  to  be  evidence  of  the  servitude 
upon  the  servient  estate  having  been  released  or  surrendered 
to  the  owner  thereof.^ 

2.  To  give  something  like  a  classification  of  the  modes  by 
which  easements  may  be  lost  or  extinguished  by  acts  of  the 
owners  of  the  two  estates,  the  effect  of  the  unity  of  these  in 
one  person  will  first  be  considered. 

As  no  one  can  be  said  to  use  one  part  of  his  own  estate 
adversely  to  another  part,  the  proposition  is  universally  true, 
that  if  the  owner  of  one  of  the  estates,  whether  dominant  or 
servient,  becomes  the  owner  of  the  other,  the  servitude  which 
one  owes  to  the  other  is  merged  in  such  ownership,  and 
thereby  extinguished. 

This  mode  of  losing  or  extinguishing  an  easement  is 
known  to  the  French  law  under  the  name  of  Confusion, 
which  they  borrowed  from  the  language  of  the  civil  law.^ 

3.  But  the  proposition  thus  far  assumes  that  both  estates 
become  united  in  title  and  possession  in  one  man,  whereby 
each  has  alike  all  the  incidents  of  a  common  ownership. 
And  this  might  and  would  be  true  to  a  limited  extent,  if  the 
possession  only  of  the  two  estates  were  united  in  the  same 
person.  So  long  as  such  possession  should  continue  united, 
the  easement  in  favor  of  the  one  and  the  servitude  upon  the 
other  would  be  suspended,  iiiasmuch  as  the  occupant  has  a 
paramount  right  to  enjoy  them  in  such  manner  as  he  pleases. 
But  when  such  possession  terminates,  as,  for  instance,  by  the 
expiration  of  a  term  of  years,  or  of  a  life  for  which  the  teu- 

1  Pardcssus,  Traitd  dcs  Servitudes,  411. 

2  Il)id.  ;  3  Biirge,  Col.  &  F.  Laws,  445  ;  D.  8.  6,  1. 


Sect.  1.]      EFFECT    OF    THE   UNITY    OF    THE   TWO   ESTATES.  GOT 

ant  may  have  held  tlic  estates,  tlie  incidents  of  ease- 
ment and  *scrvitude  belonging  to  them  at  once  re-  [*518] 
vive.  The  unity  of  title  and  possession  of  the  two 
estates,  therefore,  which  operates  an  extinguishment  of  an 
casement  in  the  one  upon  or  over  the  other,  can  only  have 
that  effect  where  the  same  proprietor  has  a  permanent  estate 
in  l)oth  tenements  not  liable  to  be  defeated  by  the  perform- 
ance of  a  condition,  or  the  determination  of  a  determinable 
fee  by  the  happening  of  some  event  beyond  his  control,  and 
where  the  estates  cannot  be  again  disjoined  by  operation  of 
law.^ 

4.  But  where  there  is  a  union  of  an  absolute  title  to  and 
possession  of  the  dominant  and  servient  estates  in  the  same 
person,  it  operates  to  extinguish  any  such  easement  abso- 
lutely and  forever,  for  the  single  reason  that  no  man  can 
have  an  easement  in  his  own  land.^ 

5.  In  the  case  above  cited  of  Ritger  v.  Parker,  J.  G.  con- 
veyed one  of  the  parcels  to  M.  G.  in  mortgage,  in  1836, 
who  took  possession  under  the  same  to  foreclose  it,  in 
1841,  and  in  1842  conveyed  it  to  Parker.  The  other  parcel 
was  conveyed  to  J.  G.  in  1839,  who  mortgaged  it  to  M.  G. 
in  1839,  and  possession  to  foreclose  was  taken  at  the  same 
time  with  that  under  the  other  mortgage  in  1841.  The 
same  was  foreclosed  by  M.  G.  in  1844,  who  conveyed  the 
estate  to  the  plaintiff.  It  will  be  perceived  that  J.  G.  held 
an  equity  of  redemption  in  both  parcels,  from  1839  to  1844, 
and  that  M.   G.  held  mortgages  upon  both  parcels,  from 

1  Ritger  v.  Parker,  8  Cush.  14.5;  Canham  v.  Fisk,  2  Crompt.  &  J.  126; 
Thomas  v.  Thomas,  2  Crompt.  M.  &  R.  34,  and  reporter's  note ;  Tyler  v.  Ham- 
mond, 11  Pick.  193,  220;  James  v.  Plant,  4  Adolph.  &  E.  749  ;  Hazard  v.  Rob- 
inson, 3  Mason,  272 ;  Keiffer  v.  Imhoff,  26  Pcnn.  St.  438,  443  ;  Woolr.  Ways, 
74  ;  Pardessus,  Traite'  des  Servitudes,  442 ;  Manning  v.  Smith,  6  Ck^nn.  289, 
291  ;  Pearce  v.  M'Clenaghan,  5  Rich.  178. 

2  Hancock  v.  Wentworth,  5  Mete.  446;  Gayettyi'.  Bethune,  14  Mass.  53,  .5.5; 
Grant  v.  Chase,  17  Mass.  443;  Canham  v.  Fisk,  2  Crompt.  &  J.  126;  Robins 
V.  Barnes,  Hob.  131  ;  Hazard  v.  Robinson,  3  Mason,  272;  Sury  v.  Pigot,  Poph. 
166;  Packer  v.  Welstead,  2  Sid.  39;  Keiffer  v.  Imhoff,  26  Penn.  St.  438,  442; 
Lalaure,  Traite'  des  Servitudes  Re'elles,  63;  Atwater  v.  Bodfish,  11  Gray,  152. 


608  THE    LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cir.  V. 

1839  to  1842,  when  she  assigned  one  of  them  to  the  defend- 
ant Parker.  And  it  was  contended  that  here  was 
[*519]  *sach  a  unity  of  title  and  possession,  as  to  extingush 
an  easement  of  way  that  had  existed  in  favor  of  one 
parcel  over  the  other.  But  the  court  held  otherwise.  So 
long  as  M.  G.  held  them,  they  were  both  defeasible  estates, 
and  defeasible  upon  different  conditions.  One  might  have 
been  redeemed  and  the  other  foreclosed,  and  redemption  or 
foreclosure  of  either  would  have  effected  an  entire  separation 
of  the  two,  each  retaining  its  own  incidents.  And  when 
actually  foreclosed,  one  estate  belonged  to  one  man  and  the 
other  to  another. 

When  a  mortgagor  or  the  assignee  redeems,  he  regains  tlie 
estate  just  as  it  existed  when  he  made  the  mortgage.  The 
operation  of  the  mortgage  is  defeated  by  force  of  the  condi- 
tion, and  he  takes  the  estate  with  all  the  incidents  and  bene- 
fits, and  subject  to  the  servitudes  to  which  it  was  subject 
when  the  mortgage  was  made.  And  no  lease,  change,  or 
encumbrance  made  by  the  mortgagee  can  be  set  up  against 
the  claims  of  the  mortgagor.  The  estate  is  restored  un- 
changed. 

So  if  the  mortgage  is  foreclosed,  the  estate  which  was  con- 
ditional and  defeasible  in  its  creation  becomes  absolute,  and 
the  incidents,  privileges,  and  covenants  attached  to  it,  un- 
changed by  anything  which  the  mortgagor  or  any  other 
person  may  have  done  in  the  mean  time,  remain  attached  to 
it  as  if  the  original  conveyance  had  been  absolute.  M.  G. 
then  never  had,  at  any  one  time,  an  unconditional,  indefeasi- 
ble interest  in  the  then  two  estates.  She  held  mortgages  on 
both  at  the  same  time,  after  having  entered  on  both  for  con- 
dition broken,  but  before  foreclosure.  This  was  not  the 
unity  required  to  constitute  a  merger.  Before  foreclosure, 
she  conveyed  one  of  the  estates  to  the  defendant.  It  is  clear 
that,  at  the  time  of  the  foreclosure,  the  estates  were  held  by 
different  owners  in  fee.^ 

1  Sue  Ballard  v.  Ballardvale  Co.,  5  Gray,  471;   Curtis  v.  Francis,  9  Cush. 
427,  457  ;  I'ardcssus,  Traite  des  Servitudes,  445. 


Sect.  1.]      EFFECT   OF   THE   UNITY   OF   THE   TWO   ESTATES.  GO 9 

*6.    So  if  the  title  to  one  of  the  estates  fail  in  the   [*520] 
hands  of  the  joint  owner  of  the  two,  the  easement  of 
the  one  in  the  other  revives  upon  the  failure  of  such  title. ^ 

7.  In  Hinchliffe  v.  Kinnoul,  which  has  already  been  no- 
ticed in  another  connection,  the  ancestor  of  Earl  G.  made  a 
lease  in  1728  of  open  and  unoccupied  land,  which  expired 
in  1824.  Upon  this  parcel  many  houses  liad  boon  built  by 
various  sub-lessees,  and,  by  the  terms  of  the  lease.  Earl  G. 
would  then  have  had  the  entire  lands,  houses,  tfec,  and  if, 
in  the  mean  time,  any  easements  had  been  acquired  in  favor 
of  one  of  these  parcels  upon  or  over  another,  the  same,  upon 
such  union  of  title  and  possession,  would  have  been,  at  the 
time  of  such  union,  extinguished. 

The  plaintiff  held  one  of  these  messuages,  and  the  defend- 
ant the  adjoining  one,  and  over  this  the  plaintiff  claimed 
easements  of  passage  of  a  coal-shute  and  of  a  watercourse. 

The  titles  of  these  two  messuages  were  as  follows.  Mrs. 
Forrester  held  the  plaintiff's  by  a  lease  which  was  to  have 
expired  in  1822.  In  1799  she  let  the  same  to  Mrs.  Hinch- 
liffe for  a  term  ending  in  1820,  with  the  appurtenances 
thereto  belonging.  Of  course  the  immediate  reversion  of 
Mrs.  Hinchlifte's  term  was  in  Mrs.  Forrester,  the  remote  one 
in  Earl  G. 

The  other  messuage  came  to  Hampden  by  a  lease  in  1793, 
to  expire  in  1824,  subject,  as  above  stated,  to  Earl  G.'s  re- 
version, to  whom  all  the  leases  would  fall  in,  in  1824. 

In  this  state  of  the  ownership.  Earl  G.,  in  1819,  let  the 
plaintiff's  messuage  to  him  for  fifty-seven  years,  to  hold  from 
and  after  1824,  the  plaintiff  having  been  in  possession  of  the 
premises  under  an  under-lessee  of  the  original  lessee  for 
some  years  before  1819.  And  in  1822  Earl  G.  made  a  lease 
of  the  defendant's  messuage  to  Hampden  for  sixty-one  years, 
to  commence  in  1824,  both  said  leases,  of  course,  being  of 
reversionary  interests  on  the  part  of  Earl  G, 

*One  question  made   in   the  case  was,  whether   [*521] 

1  Tyler  v.  Hammond,  11  Pick.  193,  290  ;  Pardessus,  supra,  446. 
39 


610  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cn.  V. 

the  unity  of  title  to  both  messuages  in  1824  in  Earl  G., 
under  whom  both  parties  claimed,  did  not  extinguisli  the 
right  of  easement  which  one  messuage  had  acquired  in  the 
other  ?  But  the  court  held  that  there  was  no  such  unity  of 
possession  as  would  operate  upon  the  right  of  easement. 
Earl  G.  had  only  a  reversionary  right  to  the  premises  when 
he  made  the  leases  in  question.  And  it  was  further  held, 
that  the  easements  mentioned,  being  necessary  to  the  enjoy- 
ment of  the  plaintiff's  messuage,  and  something  which  Earl 
G.  could  then  grant,  his  lease  of  the  messuage  passed  these 
easements  as  incident  or  appurtenant  to  the  messuage  of  the 
plaintiff,  because  they  were  in  existence  and  necessary  to  its 
enjoyment.  And,  as  to  the  supposed  unity,  the  court  say  : 
"In  consequence  of  Earl  G.'s  reversionary  lease  of  the 
messuage  in  1819,  the  right  to  the  possession  of  both  proper- 
ties was  severed,  and  there  could  be  no  unity  of  possession 
of  both  the  messuage  and  the  passage  in  him  ;  and  if  so,  it 
is  obvious  that  he  could  not,  by  his  subsequent  grant,  dero- 
gate from  a  former  valid  grant  which  he  had  already  made." 
The  facts  of  the  case  are  numerous  and  complicated,  and  it 
is  not  easy  to  present  the  points  settled  in  it  in  a  simple  and 
intelligible  form.  But  it  will  serve  the  present  purpose  to 
state  that  in  substance  the  court  held,  that,  as  by  long  en- 
joyment the  tenant  of  one  messuage  had  acquired  an  ease- 
ment in  the  adjoining  messuage  while  in  the  occupancy  of 
another  tenant,  which  easement  was  necessary  to  the  enjoy- 
ment of  the  first  messuage,  the  mere  ownership  of  both 
messuages  in  reversion  by  one  and  the  same  man  did  not 
create  a  unity  of  title  and  possession  to  the  two  in  him,  so 
but  that  when  he  leased  them  separately,  to  take  effect  at  a 
future  time,  when  his  reversion  fell  in,  he  leased  them  in  the 
state  they  were  then  in,  with  the  easement  appurtenant  to 

one  and  the  servitude  upon  the  other. ^ 
[*522]       *8.    Although  there  is  no  limitation  to  the  propo- 
sition that,  because  no  man  can  have  an  easement 

1  Iliiichliffc  r.  Kiimoiil,  5  Biiig.  n.  c.  1. 


Sect.  1.]      EFFECT   OF   THE   UNITY   OF   THE   TWO   ESTATES.  611 

for  one  parcel  of  his  land  in  or  over  another,  whenever  two 
estates  whicli  have  been  dominant  and  servient  in  other 
persons'  hands  become  his  by  a  joint  absolute  ownership 
and  possession,  all  easements  and  servitudes  previously 
existing  between  them  are  thereby  extinguished  ;  it  will 
hereafter  appear  that  the  effect  of  again  separating  the 
ownership  of  these  estates  in  reviving  these  easements  varies 
essentially  according  to  the  nature  and  character  of  these 
easements.  In  some  cases  the  law,  in  order  to  give  effect  to 
a  grant,  restores  the  former  easement  to  the  estate  granted, 
wdiilc  in  others  this  can  only  be  done  by  express  terms  in  the 
deed. 

And  whether  an  easement  shall  revive  or  not  upon  the 
alienation  of  one  of  the  estates,  may  depend  upon  the 
act  of  the  owner  while  holding  both.  If,  for  instance,  the 
former  easement  consisted  of  an  artificial  trench  of  water, 
or  of  pipes  for  an  aqueduct,  by  whicli  water  is  conducted 
over  or  from  one  parcel  to  the  other  for  the  benefit  of  the 
latter,  and  the  owner  while  in  possession  of  both  were  to  fill 
up  the  trench  or  cut  off  the  aqueduct,  and  were  then  to 
convey  what  had  been  the  dominant  estate,  by  itself,  it 
would,  in  order  to  revive  the  former  easement,  be  necessary 
to  grant  it  in  express  terms.^ 

And  the  same  principle  would  apply  if,  while  two  estates 
were  in  the  ownership  of  the  same  person,  and  they  consisted 
of  mills  upon  the  same  stream,  the  owner  were  to  so  arrange 
the  operation  of  the  two  as  to  increase  the  power  of  the  one 
by  flowing  back  water  upon  the  other,  whereby  the  power  of 
the  latter  was  partially  destroyed,  and  he  should  then  sell 
the  upper  estate  by  itself,  the  original  easement  which  it  had 
enjoyed  would  not  be  restored  thereby  beyond  its  then  exist- 
ing condition.^ 

1  Nicholas  v.  Chamberlain,  Cro.  Jac.  121;  Sury  v.  Pigot,  Poph.  166;  ante, 
313. 

2  Hazard  v.  Robinson,  3  Mason,  272. 


612      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  V. 


[*523]  *SECTION    II. 

EFFECT    OF    CONVEYING    ONE    OF    TAVO    ESTATES    IN    REVIVING 
FORMER   EASEMENTS. 

1.  Subject  stated  and  limited. 

2.  Natural  easements  revive  on  dividing  estates. 

3.  So  do  easements  which  are  necessary. 

4.  What  the  consideration  of  the  subject  assumes. 

5.  Such  easements  only  revive  as  are  apparent. 

6.  Easements  revive  by  reservation  as  well  as  grant. 

7.  Easements  extinguished  do  not  pass  by  the  term  appurtenant. 

8.  What  easements  pass  with  an  estate,  though  not  named  as  appurtenant. 

9.  How  far  such  easement  must  be  necessary  to  the  estate. 
10.  Duncklee  v.  Wilton  Railroad.    Same  subjects. 

1.  Though  the  law  intended  to  be  considered  under  this 
head  must  obviously  have  many  analogies  with  the  general 
subject  discussed  in  a  former  part  of  this  work,  the  effect  of 
dividing  heritages  in  creating  easements  or  servitudes  in 
one  part  in  favor  of  the  other,  there  seemed  to  be  a  propri- 
ety in  treating,  as  a  separate  topic,  the  case  of  two  estates 
in  respect  to  which  easements  may  have  once  existed,  but 
which  have  subsequently  been  extinguished  by  a  union  of 
the  two  in  the  same  ownership  and  possession.  The  ques- 
tion in  such  case  arises  as  to  the  effect  of  a  conveyance  of 
one  of  these  estates  by  such  owner,  retaining  the  other  him- 
self, or  of  a  separate  conveyance  of  each  estate  to  two  differ- 
ent owners.  Do  the  easements  or  servitudes  in  such  a  case 
revive  thereby,  as  they  had  existed  in  relation  to  each  estate 
before  they  had  been  extinguished  by  unity  of  title  and  pos- 
session, or  by  what  line  and  limit  is  the  rule  determined  in 
regard  to  such  easements  reviving  upon  the  conveyance  of 
one  or  both  of  the  estates  ? 

2.  So  far  as  the  easements  come  within  what  are  called 
natural,  like  the  flow  of  water  in  a  natural  stream  from  one 
to  the  other,  or  that  class  which  grows  out  of  locality,  like 
the  discharge  of  rain  or  surface  water  from  a  higher  upon  a 


Sect.  2.]      REVIVING  EASEMENTS   BY   CONVEYING   ESTATES.  613 

lower  field,  they  would  revive  in  respect  to  each  other, 

the  *  moment  the  ownership  and  possession  of  the   [*524] 

two  parcels  had  passed  to  different  hands,  because, 

as  has  been  heretofore  sliown,  they  exist  jure  naturae,  and 

are  incidents  of  property  in  the  several  parcels.^ 

3.  The  same  would  be  true  of  such  easements  as  are 
necessary  to  the  enjoyment  of  the  one  parcel  or  the  other, 
as  in  the  case  of  ways  ;  though  by  making  the  new  grant  in 
such  a  case,  it  is  rather  the  creation  of  a  new  right  of  way 
by  implication,  than  the  reviving  of  a  former  one,  and  ways 
thus  created  are  appurtenant  only  so  long  as  the  necessity 
continues.^ 

4.  This  subject,  it  will  be  perceived,  assumes  two  things : 
first,  that  the  owner  has  done  nothing  while  holding  both 
estates  to  destroy  the  existence  of  what  was  once  an  ease- 
ment, like  cutting  off  the  pipe  of  an  aqueduct,  for  instance  ; 
and,  second,  that,  in  making  his  conveyance  of  the  one  or 
the  other  estate,  he  makes  no  specific  reference  in  his  deed 
to  what  is  claimed  as  the  easement.  From  this  arises  the 
question  which  is  now  under  consideration.  What  must  be 
the  situation  of  the  two  estates,  and  what  the  character  of 
the  easement,  to  have  a  simple  conveyance  of  the  one  estate 
or  the  other  revive  and  pass  it,  or  reserve  it  as  an  appurte- 
nant to  the  dominant  estate  ? 

5.  In  the  first  place,  in  order  to  pass  with  an  estate,  the 
easement,  in  the  case  supposed,  must  be  an  apparent  one. 
Among  the  cases  illustrative  of  this,  that  of  Seibert  v.  Levan 
may  be  referred  to,  where  the  owner  of  two  closes,  upon  one 
of  which  he  had  a  mill,  and  upon  the  other  the  dam  and 
pond  of  water  by  which  it  was  operated,  conveyed  the  latter, 
it  Avas  held  that  his  grantee  took  it  subject  to  the  servitude 
of  the  dam  and  right  of  flowing  a  pond  for  the  use  of  the 
dam.^ 

1  Dunklee  v.  Wilton  R.  R.  Co.,  4  Foster,  489,  497  ;  Sury  v.  Pigot,  Poph.  166. 

2  Grant  v.  Chase,  17  Mass.  443,  448  ;  Jenk.  Cent,  case,  37;  Pomfret  ;;.  Ri- 
croft,  1  Wms.  Sauml.  323,  n.  6. 

3  Seibert  v.  Levan,  8  Penn.  St.  383,  387. 


614  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

[*525]  *Anotlier  would  be  the  case  of  two  mills  upon  the 
same  stream  belonging  to  the  same  owner,  so  ar- 
ranged that  the  water  of  the  pond  of  the  lower  mill  flows 
back  upon  the  wheel  of  the  upper  one,  if  he  were  to  convey 
the  upper  mill,  describing  the  premises  as  so  much  land  with 
a  mill  and  privilege,  the  purchaser  would  take  it  subject  to 
the  effect  of  the  lower  works  upon  its  operation. ^ 

The  same  principle  has  been  extended  to  cases  of  lights, 
air,  gutters,  eaves'  drip,  and  the  overhanging  of  the  eaves  of 
a  house  upon  the  adjoining  estate,  where  one  or  both  these 
adjoining  estates  are  conveyed  by  a  common  owner,  though 
in  tlie  matter  of  light  and  air  it  should  be  remembered,  the 
common  law  does  not  prevail  in  several  of  the  United  States.^ 

So  the  doctrine  has  been  applied  to  the  case  of  one  parcel 
of  land  drained  through  another  by  an  artificial  ditch,  cut 
from  the  former  through  the  latter,  to  a  canal  into  which 
the  water  was  discharged.  These  two  parcels  had  come  to 
the  same  owner  by  different  purchasers,  and  of  course,  while 
held  by  him,  this  right  of  drain  became  extinct  as  an  ease- 
ment. But  upon  his  conveying  the  first-mentioned  parcel 
separately,  it  was  held  that  the  right  of  drain  as  an  ease- 
ment revived,  and  passed  as  appurtenant  to  the  parcel  thus 
conveyed.^ 

A  like  principle  is  also  said  to  apply  to  the  case  of  a  way, 
not  strictly  of  necessity,  but  which  has  been  used  from  one 
parcel  across  another  to  a  church  or  a  mill  and  the  like,  both 
parcels  having  been  owned  by  the  same  person.  If  he  should 
convey  the  intermediate  close,  there  would  be  at  once  an 
easement  of  way  from  the  other  close  to  the  church 
[*526]  *or  mill,  across  it,  without  any  words  of  grant  con- 
veying the  same  in  terms.* 

1  Gary  v.  Daniels,  8  Mete.  466,  480,  482  ;  Hazard  v.  Robinson,  3  Mfeon, 
172. 

2  Robins  v.  Barnes,  Hob.  131  ;  ante,  p.  44  ;  Nicholas  v.  Chamberlain,  Cro. 
Jac.  121  ;  ante,  p.  392. 

3  Ferguson  v.  Witscll,  5  Rich.  280.  See  Shaw  i'.  Ethridgc,  3  Jones  (Law), 
300;  Dodd  v.  Burchell,  1  H.  &  Colt.  121.' 

*  Seibert  v.  Lcvan,  8  Pena.  St.  383  ;  Sury  v.  Pigot,  per  Doddridge,  3.,  Poph. 


Sect.  2.]     REVIVING   EASEMENTS   BY   CONVEYING   ESTATES.  615 

6.  It  may  be  stated  here  that  the  same  rule  applies  as  to 
reviving  an  easement  by  conveying  one  of  the  estates, 
whether  the  parcel  conveyed  be  the  dominant  or  servient 
estate.  If  it  be  the  dominant,  the  easement  over  the  other 
passes  as  appurtenant  to  it.  If  it  be  the  servient,  the  ease- 
ment is  created  in  favor  of  the  dominant  remaining  in  the 
grantor's  hands,  by  way  of  reservation.  The  authorities 
upon  this  point  are  Seibert  v.  Levan,  above  cited,  and  Dunk- 
lee  V.  Wilton  Railroad,^  controverting  if  not  overruling  the 
doctrine  of  Burr  v.  Mills-  and  Preble  v.  Reed,-"^  which  make 
a  distinction  between  an  easement  being  raised  by  a  grant  of 
the  dominant  estate,  and  the  case  of  a  reservation  by  the 
grantor  of  the  dominant  estate. 

The  language  of  Jevvett,  C.  J.  in  French  v.  Carhart,  may 
probably  be  taken  as  a  sound  principle,  that  a  "  reservation 
should  be  construed  in  the    same  way  as  a  grant  by  the 

owner  of  the  soil  of  a  like  privilege The  sound  and 

reasonable  rule  is,  that  whatever  is  necessary  to  the  fair  en- 
joyment of  the  thing  granted  or  excepted,  is  incidentally 
granted  or  excepted."  ^ 

7.  It  should  be  remembered,  moreover,  that  in  giving 
effect  to  a  deed  of  one  of  two  parcels,  in  respect  to  a  way, 
for  instance,  nothing  results  from  a  general  clause  granting 
therewith  all  ways  appurtenant  to  the  granted  premises. 
When  the  two  estates  came  to  be  united  in  the  same  owner- 
ship and  possession,  the  way  was  thereby  extinguished,  and 
of  course  ceased  to  be  any  longer  appurtenant,  and  could 
only  be  made  so  again  by  express  grant.  It  was  ac- 
cordingly *held,  in  James  v.  Plant,  that,  "  where  [*527] 
there  is  a  unity  of  seizin  of  the  land  and  of  the  way 

166,  172 ;  Jordan  v.  Atwood,  Owen,  121  ;  1  Rolle,  Abr.  936  ;  Woolr.  Ways,  71 ; 
Phillips  V.  Phillips,  48  Penn.  178,  186  ;  1  Jenk.  Cent,  case,  37  ;  Leonard  v.  Leon- 
ard, 2  Allen,  543. 

1  Dunklce  v.  Wilton  R.  R.  Co.,  4  Foster,  489. 

2  Burr  V.  Mills,  21  Wend.  292. 

3  Preble  v.  Reed,  17  Me.  169.     See  also  ante,  p.  36;  Guy  v.  Browne,  F.  Moore, 
C44  ;  Nicholas  v.  Chamberlain,  Cro.  Jac.  121. 

*  French  v.  Carhart,  1  Comst.  103,  104. 


616  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.  •        [Cif.  V. 

over  the  land,  in  one  and  the  same  person,  the  riglit  of  way- 
is  either  extinguished  or  suspended,  according  to  the  dura- 
tion of  the  respective  estates  in  the  land  and  the  way  ;  and 
after  such  extinguishment,  or  during  such  suspension  of  the 
right,  the  way  cannot  pass  as  an  appurtenant,  under  the 
ordinary  legal  sense  of  that  word."  ^ 

The  same  doctrine  was  applied  to  the  case  of  an  aqueduct 
from  one  parcel  to  another,  the  ownership  of  both  estates 
having  come  to  the  same  person,  who  subsequently  conveyed 
the  estate  for  whose  benefit  the  aqueduct  was  designed, 
"with  all  appurtenances." 2 

The  last-mentioned  case  is  cited  to  sustain  the  effect  to  be 
given  to  the  word  appurtenances  in  a  grant  in  passing  artifi- 
cial easements  with  one  of  two  estates,  wliere  the  easement 
had  been  extinguished  by  unity  of  seizin  ;  for  it  is  not  clear, 
to  say  the  least,  that  the  right  of  aqueduct  in  that  case  would 
not  have  passed  as  being  an  apparent  continuous  ease  or  ben- 
efit which  one  part  of  the  joint  estate  had  in  the  other  at  the 
time  of  the  conveyance,  upon  the  principle  of  other  cases 
already  cited. 

The  doctrine  that  an  easement,  extinguished  by  unity  of 
seizin  of  the  estates,  may  not  pass  with  one  of  them  as  an 
appurtenant,  was  held  to  apply  in  the  case  of  a  right  of 
common.^ 

And  the  rule,  as  laid  down  in  the  Digest  upon  the  subject, 
is  explicit  in  its  terms  :  "  Si  quis  sedes  quae  suis  sedibus  ser- 
virent,  cum  emisset,  traditas  sibi  accepit,  confusa  sublataque 
servitus  est :   et  si  rursus  vendere  vult,  nominatim  impo- 

nenda  servitus  est;  alioquin  liberae  veniunt."* 
[*528]       *8.  But  while  the  cases  last  cited  serve  to  show 
that  certain  rights,  though  formerly  united  with  an 
estate,  will  not,  after  becoming  extinguished  by  unity  of  the 

1  James  V.  Plant,  4  Adolph.  &  E.  749. 

2  Manning  v.  Smith,  6  Conn.  289, 

2  Clements  v.  Lambert,  1  Taunt.  208. 

*  D,  8,  2,  30.     Sec  3  Burge,  Col.  &  F.   Law,  446 ;  Pardessus,  Traite  des 
Servitudes,  440. 


Sect.  2.]     REVIVING   EASEMENTS   BY   CONVEYING   ESTATES.  617 

two  estates,  revive  or  pass  under  the  term  appurtenant,  tliey 
do  not  bear  upon  the  main  point  intended  to  he  illustrated 
in  this  part  of  the  general  subject,  —  what  will  pass  as  an 
ease  or  benefit  witli  one  estate  in  or  over  another  as  an  inci- 
dent to  the  grant,  although  no  reference  be  made  to  the 
same  in  the  deed  of  such  estate. 

That  such  would  be  the  effect  in  the  case  of  certain  ap- 
parent easements  has  already  been  shoAvn.  And  that  this  is 
true,  but  that  unless  the  same  was  thus  apparent  it  would 
not  pass,  seems  to  be  settled  in  Glave  v.  Harding,  where 
Pollock,  C.  B.  says:  "It  cannot  be  denied,  that  if  a  man 
builds  a  house,  and  there  is  actually  a  way  used  or  obvi- 
ously and  manifestly  intended  to  be  used  by  the  occupiers 
of  the  house,  the  mere  lease  of  the  house  would  carry  with 
it  the  right  to  use  the  way  as  forming  part  of  its  construc- 
tion," Which  ruling  was  thus  modified  by  Bramwell,  B.,  in 
these  words :  "  It  (the  lease)  did  not  grant  the  right  in 
terms,  and  the  only  way  in  which  it  could  grant  it  was,  that 
the  condition  of  the  premises  at  the  time  when  the  lease  was 
granted  showed  that  it  was  intended  that  the  right  of  way 
should  be  exercised,  upon  the  principle  of  law  I  have  ad- 
verted to,  that,  by  the  devolution  of  the  tenements  originally 
held  in  one  ownership,  a  right  of  way  to  a  particular  door  or 
gate  would,  as  an  apparent  and  continuous  easement,  pass 
to  the  owners  and  occupiers  of  both  of  them.  But  I  think 
the  way  in  question  was  not  a  continuous  and  apparent  ease- 
ment within  that  principle  of  law,  and  therefore  I  arrive  at 
the  conclusion  that  there  was  no  evidence  of  the  right  of 
way  alleged  in  this  case." 

The  subject  of  grant  in  this  instance  was  a  single  house 
in  a  block,  sold  when  partly  finished,  which  had  openings  in 
the  walls,  but  whether  for  doors  or  windows  was  not  appar- 
ent, in  which  respect  it  differed  materially  from  the 
*case  of  Compton  v.  Richards,^  and  consequently  it  [*529] 
could  not  be  claimed  that  there  was  an  apparent  ex- 

1  Compton  V.  Richards,  1  Price,  27. 


618  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Cii.  V. 

isting  way  from  the  street  to  any  particular  opening,  as  a 
door.  And  the  judgment  of  the  court  went  upon  the  ground 
that  "  the  right  is  not  granted  in  terms,  nor  by  implication, 
as  a  continuous  and  apparent  easement ;  therefore  it  was  not 
granted  at  all."  ^ 

In  the  case  of  White  v.  Bass,  a  question  as  to  an  implied 
servitude  of  light  and  air  over  a  part  of  the  granted  premises 
for  the  benefit  of  another  part,  arose  in  this  way.  A  house 
and  parcel  of  land  adjoining  belonged  to  one  owner  who 
leased  the  land  upon  a  long  term,  and  in  it  restricted  the 
tenant  from  building  so  as  to  obstruct  the  light  of  the  les- 
sor's house  according  to  a  prescribed  plan.  He  afterwards 
sold  the  reversionary  right  to  the  leased  premises  by  an  abso- 
lute and  unqualified  deed.  The  house,  afterwards,  was  con- 
veyed, and  came  to  the  plaintiff,  and  the  other  premises  to 
the  defendant,  who  begun  to  erect  a  building  to  obstruct  the 
light  of  the  plaintiff's  house.  In  answer  to  an  action  grow- 
ing out  of  this,  the  court  held  that  there  was  no  servitude  of 
light  in  favor  of  the  plaintiff's  house.  The  effect  of  the 
grant  of  the  reversion  to  the  lessee  was,  to  extinguish  his 
obligation  as  to  the  mode  of  using  the  premises  under  the 
lease,  and  therefore  it  stood  as  if,  owning  the  house  and 
land,  he  had  sold  the  land  reserving  the  house,  in  which  case 
lie  could  not  claim  for  his  house  an  easement  over  the 
granted  land  in  derogation  of  his  own  grant.  And  one  of 
the  Barons,  in  comparing  it  to  the  case  of  a  way  where,  if 
it  is  one  of  necessity,  the  law  might  reserve  it  to  a  grantor 
over  the  granted  premises,  limits  it  to  cases  like  ways  of  ne- 
cessity.2 

The  case  of  Pyer  v.  Carter,'^  which  was  decided  in  ac- 
cordance with  the  doctrine  of  the  foregoing  cases,  was  that 
of  a  drain  from  one  house  running  under  and  through  an 
adjacent  one  ;  and  the  right  to  maintain  it  was  held  to  pass 

1  Gluvc  V.  Hardinj^,  3  Ilurlst.  &  N.  937,  944. 

^  White  V.  Biiss,  7  H.  &  Norm.  722. 

8  Tycr  I'.  Carter,  1  Hurlst.  &  N.  916  ;  ante,  p.  62,  et  seq. 


Sect.  2.]      REVIVING    EASEMEiNTS   BY    CONVEYING   ESTATES.  619 

with  the  first-mentioned  house,  being  an  easement  continu- 
ous and  apparent  in  its  character. 

9.  And  yet  it  seems  that,  in  order  to  liavc  such  casement 
revive  and  pass  as  appurtenant  to  one  of  the  estates,  it 
should  be  to  a  certain  extent  necessary  to  the  enjoyment 
of  it.  The  extent  of  this  necessity,  however,  does  not  seem 
to  be  well  settled.  The  decided  cases  clearly  do  not  come 
within  the  rule  of  necessity  which  carries  a  i-ight  of  way  in 
the  grant  of  premises ;  for  there  no  degree  of  inconvenience 
raises  a  right  to  such  a  way,  provided  it  be  not  actually  ne- 
cessary, nor  does  the  easement  exist  any  longer  than  the 
necessity  continues.  There  is  a  distinction  between  contin- 
uous enjoyments,  like  drains,  and  discontinuous,  like  rights  of 
way,  and  the  court  say  :  "  We  do  not  think,  on  the  severance 
of  two  tenements,  any  right  to  all  ways,  which  during  the 
unity  of  possession  have  been  used  and  enjoyed  in  part, 
passes  to  the  owner  of  tlie  dissevered  tenement,  unless  there 
be  something  in  the  conveyance  to  show  an  intention  to  cre- 
ate the  right  to  use  the  ways  de  novo^  ^ 

In  a  former  part  of  this  work  it  was  said,  "  The  test 
seems  to  be,  whether  what  is  claimed  is  reasonably  neces- 
sary to  the  enjoyment  of  the  part  granted":-  and  this  is 
justified  by  the  language  of  Jewett,  C.  J.,  in  French  v. 
Carhart.-"  It  does  not  depend  upon  whether  another  ease- 
ment of  the  kind  can  be  obtained  at  an  inconsiderable  ex- 
pense or  not,  provided  such  an  easement  as  is  then  existing 
is  necessary  for  the  reasonable  enjoyment  of  what 
*is  granted.  And  the  cases  of  Pyer  v.  Carter,  above  [*5C0] 
cited,  and  Johnson  v.  Jordan,*  when  examined  in  the 
light  of  the  facts  of  each  case,  go  to  confirm  this  position. 

10.  The  case  of  Dunklee  v.  Wilton  Railroad,  though  be- 

1  Pearson  v.  Spencer,  1   B.  &  Smith,  583  ;  S.  C.  3  B.  &  Smith,  761.     See 
Dodd  V.  Burchell,  1  H.  &  Colt.  118,  120;  ante,  p.  *44. 

2  Ante,  p.  *61.     See  also  pp.  *36,  *54. 

3  French  v.  Carhart,  1  Comst.  104. 

*  Johnson  v.  Jordan,  2  Mete.  234,  242.     See  also  2  Fournel,  Traite  du  Voisi- 
nage,  403,  404. 


620  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

fore  cited,  has  been  purposely  reserved  until  now,  because, 
though  covering  many  of  the  points  before  stated,  and  refer- 
ring with  much  apparent  research  to  most  if  not  all  the  cases 
hereinbefore  enumerated,  it  assumes  to  place  the  rule  of  law 
applicable  to  such  cases  upon  an  original  ground. 

"  Our  next  position  is,"  says  Bell,  J.,  "  that  property  con- 
veyed passes  in  its  existing  state  subject  to  all  existing  ease- 
ments and  burdens  of  a  similar  nature,  in  favor  of  the  other 
lands  of  the  grantor  which  are  apparent,  and  which  result 
naturally  from  the  relative  situation  of  the  land,  and  from 
the  nature,  construction,  and  intended  use  of  the  buildings, 
mills,  &c.,  upon  it,  and  their  situation  and  connection  with 
other  property  as  they  were  usually  enjoyed  at  the  time  of 
the  conveyance.  We  propose  to  advert  to  the  authorities 
upon  this  point  more  at  length,  because,  though  there  is  a 
series  of  decisions  for  several  centuries  back,  all,  as  we  re- 
gard them,  tending  to  support  the  above  position,  few  if  any 
of  them  are  distinctly  placed  upon  this  broad  ground,  while 
many  of  them  rest  upon  the  once  fashionable  refinement  of 
unity  of  possession,  revivor,  and  extinguishment."^ 

If,  as  the  cases  all  seem  to  show,  the  union  of  two  estates 
in  one  owner  extinguishes  whatever  easement  the  one  has 
in  or  over  the  other,  and  if  that  ease  or  benefit  be  of  a  char- 
acter so  apparent,  continuous,  and  necessary  to  one  of  these 
estates  as  to  raise,  in  the  eye  of  the  law,  a  reasonable 
presumption  that,  upon  a  sale  of  such  estate,  both  ven- 
dor and  vendee  must  have  understood  and  expected,  in  the 
absence  of  any  language  to  the  contrary,  that  the 
[*531]  *vendee  was  to  have  the  advantage  and  benefit 
thereof,  and  in  consequence  of  this  the  law  holds 
that  such  ease  or  benefit  becomes  again  appurtenant  to  such 
estate,  it  is  not  easy  to  see  why  giving  this  effect  to  "  unity 
of  possession,  revivor,  and  extinguishment,"  should  be  re- 
garded as  a  "  once  fashionable  rejinement.^^ 

The  facts  of  the  case  were  briefly  these.     The  plaintiff,  by 

1  Dunklcc  V.  Wilton  R.  R.,  4  Foster,  489,  496. 


Sect.  2.]     REVIVING  EASEMENTS   BY   CONVEYING   ESTATES.  621 

purchase,  became  the  owner  of  a  parcel  of  land  below  his 
mill,  through  which  by  an  artificial  race-way  the  water  was 
discharged  from  his  mill  into  the  stream  below.  This  state 
of  things  had  continued  some  tliirteen  years,  during  which 
time  the  original  channel  through  this  land  had  grown  up  to 
grass  and  bushes,  and  had  become  filled  up,  and  in  some 
parts  difficult  to  trace.  In  this  state  of  things  the  plaintiff 
conveyed  a  parcel  of  land  covering  this  race-way  and  the  old 
channel  at  their  intersection,  by  deed  with  covenants  of 
warranty,  and  the  question  was,  if  by  so  doing  he  had  lost 
the  right  to  use  this  race-way  through  the  granted  premises. 
The  court  held  that  he  had  not ;  and  in  stating  the  grounds 
upon  which  the  case  was  rested,  there  is  a  principle  laid  down 
applicable  to  this  class  of  easements,  which,  so  long  as  con- 
fined to  these  cases,  seems  to  be  well  sustained  by  reason 
and  authority,  that,  as  the  owner  of  an  estate  "  has  the  right, 
by  virtue  of  his  ownership,  to  make  any  disposition  of  the 
property  which  he  pleases,  it  seems  to  follow  that,  if  he  does 
make  any  change  in  the  property,  those  who  claim  under 
him,  and  derive  their  titles  from  him,  must  take  the  property 
in  the  state  it  is  in  at  the  time,  precisely  as  if  it  had  been  its 
natural  state,  and  no  other  had  ever  existed."  But  it  still 
seems  to  be  limited,  in  the  matter  of  easements,  to  such  only 
as  are  apparent ;  and  in  the  case  to  which  the  doctrine  was 
applied  it  was  not  only  an  apparent,  but  a  continuous  one, 
and  necessary  to  the  enjoyment  of  the  principle  estate, 
which  the  grantor  retained  when  he  granted  the  servient 
tenement. 


622  THE   LAW    OF   EASEMENTS   AND    SERVITUDES.  [Cii.  V. 

[*532]  *SECTION   III. 

OF   CHANGES    IN   ESTATES    AFFECTING   RIGHTS    OF   EASEMENT. 

1.  Way  lost  by  destroying  the  dominant  tenement. 

2.  Rights  of  private  way  not  lost  by  a  public  dedication. 

3.  Easement  lost  by  its  purpose  ceasing. 

4.  Chase  v.  Sutton  Manufacturing  Company.     When  change  of  purposes  of  flowing 

destroys  the  right. 

5.  Effect  on  a  way  of  destroying  the  intermediate  estate. 

6.  Easements  destroyed  bj'  act  of  God  or  that  of  the  law. 

7.  Locating  a  public  way  does  not  destroy  an  existing  private  one. 

8.  Private  right  of  drain  not  aflected  by  creating  a  public  one. 

9.  Effect  of  destruction  of  the  two  tenements  on  party  walls. 

1  Another  mode  of  extinguishing  easements  is  by  such  a 
change  in  the  condition  of  the  estates,  in  reference  to  which 
such  easements  have  existed,  as  to  render  the  use  and  enjoy- 
ment thereof  no  longer  of  any  practical  utility  or  avail. 
Thus  where  one  had  a  right  of  way  across  an  open  space  of 
land  to  certain  outhouses,  and  these  were  removed,  and  the 
land  on  which  they  stood  was  laid  out  as  a  highway,  it  was 
held  that  the  right  of  way  was  thereby  extinguished.^ 

So  where  the  owner  of  a  defined  way  stood  by  and  saw  the 
purchaser  of  the  servient  estate  erect  a  house  across  the  way, 
so  as  effectually  to  stop  it,  and  made  no  objection,  it  was 
held  to  work  an  estoppel  to  any  claim  of  right  to  remove  the 
building  for  the  purpose  of  opening  the  way.^ 

So  where  one,  owning  a  barn,  had  a  right  of  way  of  neces- 
sity to  the  same  over  the  land  of  another,  and  suffered  his 
barn  to  go  wholly  to  decay,  it  was  held  that  the  right  of  way 
thereby  became  extinct.^ 

1  Hancock  v.  Wcntworth,  5  Mete.  446  ;  2  Fournel,  Traite'  du  Voisinage,  405. 

The  French  law  is  thus  stated  :  "  Les  servitudes  cessent  lorsque  les  choses  se 
trouvent  en  tel  c'tat  qu'on  ne  pent  plus  en  user,  comme  si  le  funds  dominant  et 

le  funds  servant  vienncnt  a  perir Mais  les  servitudes  revivent  si  les  choses 

sent  rdtahlies  dc  mauiere  qu'on  puissc  en  user."  3  Toullier,  Droit  Civil  Fran- 
f;ais,  522.  See  Lalaure,  Traite'  des  Servitudes,  84 ;  Pardessus,  Traite  des  Ser- 
vitudes, 4.37. 

-  Arnold  v.  Connman,  50  Pcnn.  361. 

3  Gayetty  v.  Bethune,  14  Mass.  49;  ante,  p.  167. 


Sect.  3.]       CHANGES   IN  ESTATES   AFFECTING   EASEMENT.  G23 

2.  But  one  docs  not  lose  an  easement  of  way  as  a  private 
riglit  by  tlie  owner  of  the  servient  estate  dedicating  it  to  the 
public  use.^ 

3.  And  it  is  stated,  as  a  general  proposition,  that, 

"  If  an  *eascment  for  a  particular  purpose  is  grant-  [*533] 
ed,  when  that  purpose  no  longer  exists,  there  is  an 
end  of  tlie  easement."  The  cases  in  which  this  doctrine  has 
been  applied  have  been  chiefly,  though  not  always,  those  of 
public  easements  ;  as,  for  instance,  the  right  of  maintaining  a 
public  canal  across  the  land  of  an  individual.  In  one  case 
such  a  company  had  a  sluice  from  below  the  plaintiff's  mill, 
which  they  applied,  not  only  for  the  purposes  of  their  canal, 
but  also  for  working  a  mill.  When  the  water  was  kept 
down,  it  did  not  impede  the  plaintiff's  wheel,  but  when  the 
canal  was  full,  it  did.  The  canal  was  discontinued  by  act 
of  Parliament,  and  a  railroad  substituted  therefor ;  but  the 
latter  was  to  retain  the  easements  which  had  been  acquired 
by  the  canal.  Under  this  the  company  continued  to  use  the 
sluice,  and  to  keep  up  the  water  to  the  injury  of  the  plaintiff's 
wheel.  It  was  held,  that,  being  a  use  for  a  different  purpose 
than  that  for  which  the  sluice  was  constructed  in  connection 
with  the  canal,  the  right  thus  to  keep  up  the  water  did  not 
pass  to  the  railroad.'^ 

4.  In  Chase  v.  Sutton  Manufacturing  Company,  a  canal 
company  was  authorized  to  flow  lands,  <fec.  of  individuals, 
paying  damages  for  the  same.  The  plaintiff  recovered  dam- 
ages for  flowing  his  land,  under  proceedings  for  that  purpose 
against  the  company.  The  company  were,  by  their  charter, 
authorized  to  erect  mills  and  other  works  on  the  reservoirs, 
&c.  of  the  company,  and  the  plaintiff's  land  was  flowed  by  a 
pond  raised  for  a  reservoir,  and  also  used  for  carrying  a  mill, 
now  belonging  to  the  defendants.  And  it  was  held  that  the 
damages  recovered  by  him  covered  as  well  the  flowing  for 

1  Regina  v.  Chorley,  12  Q.  B.  515. 

~  National  Manure  Co.  v.  Donald,  4  Hurlst.  &  N.  8,  19.  See  Gayetty  v. 
Bethunc,  14  Mass.  49  ;  M'Donald  v.  Lindall,  3  Rawle,  492;  2  Fourntl,  Traiie 
du  Voisinage,  406. 


624  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

the  purposes  of  a  canal  reservoir  as  for  the  purposes  of  the 
mill. 

The  canal  was  subsequently  abandoned  and  filled  up,  and 
the  bed  of  it  was  sold  to  a  railroad,  under  authority  granted 
by  the  legislature.  The  act  authorized  the  canal 
[*534]  company  *to  sell  their  entire  property,  or  any  part 
thereof,  and  to  vest  a  good  title  to  the  same  in  the 
purchaser.  It  further  authorized  the  dams  erected  by  the 
canal  company  to  be  kept  up  by  the  mill-owners  thereon  for 
their  benefit.  In  the  sale  of  their  road-bed  to  the  railroad 
company,  the  canal  company  reserved  the  land,  dam,  and 
waters  retained  by  them  on  the  river.  The  court  held,  that 
the  damages  recovered  by  the  plaintiff  were  for  a  permanent 
easement  to  flow  his  land,  as  well  for  mill  purposes  as  for  the 
canal ;  that  it  was  competent  for  the  legislature  to  authorize 
the  canal  company  to  sell  the  right  to  keep  up  the  dam  for 
mill  purposes,  although  the  canal  was  discontinued  ;  and 
that,  having  once  recovered  damages  for  such  flowing,  he 
could  not  recover  these  a  second  time  of  the  defendant  for 
continuing  to  flow  the  land  for  the  purposes  of  his  mill. 
But  the  whole  reasoning  of  the  case  goes  upon  the  assump- 
tion, that,  if  the  easement  had  been  acquired  for  the  canal 
only,  and  the  canal  had  been  discontinued,  the  easement 
would  have  been  lost,  unless  saved  by  the  act  of  the  legisla- 
ture.^ 

5.  So  where  there  was  a  right  of  way  from  a  piece  of  up- 
land through  a  dock  to  deep  water,  and  a  street  was  laid  out 
between  such  parcel  and  the  deep  water,  and  by  its  construc- 
tion filled  up  the  dock,  cutting  off  communication  between 
the  upland  and  the  water,  it  was  held  that  the  right  of  way 
was  thereby  extinguished,  or  at  least  suspended,  and  if, 
while  so  suspended,  the  owner  of  the  estate  grant  it  to 
another,  the  casement  of  way  would  not  pass  with  it.^ 

Where  a  right  of  way  was  by  its  terms  limited  as  a  servi- 

1  Chase  V.  Sutton  Mg.  Co.,  4  Cush.  152. 

'■^  Mussey  v.  Proprietor  Union  Wharf,  41  Mc.  34. 


Sect.  3.]       CHANGES   IN   ESTATES   AFFECTING   EASEMENT.  625 

tude  to  a  garden  connected  with  a  dwelling-house  in  the 
country,  it  was  held  that  it  could  not  be  extended  to  the  use 
of  the  house,  if  separated  from  the  garden.^ 

6.  The  general  doctrine  is  stated  to  be  :  "  Where  a  right, 
title,  or  interest  is  destroyed  or  taken  away  by  the 

act  of  *God,  operation  of  law,  or  act  of  the  party,  it  [*535] 
is  called  an  extinguishment,^''  and  an  "  casement  is 
one  of  the  rights  which  may  be  extinguished  or  destroyed."  ^ 
But  an  easement,  by  custom,  of  taking  water  from  a  well 
is  not  extinguished  by  an  act  of  enclosure  of  the  common  in 
which  it  is  situate,  although  those  acts  of  enclosure  are  laws 
of  the  land.^ 

7.  But  the  mere  location  of  a  public  way  over  a  private 
one  does  not  deprive  the  owner  of  the  latter  of  his  rights  as 
such  owner  in  the  same,  against  any  one  who  should  ob- 
struct it.^ 

8.  Nor  would  the  construction  of  a  public  drain  from  the 
land  of  one  who  has  hitherto  enjoyed  a  private  right  of  drain, 
affect  this  righty^although  the  private  drain  may  cease  to  be 
necessary  to  the  enjoyment  of  the  land.^ 

9.  A  question  of  a  somewhat  peculiar  character,  as  to  how 
far  an  easement  may  be  lost  without  any  act  of  either  party, 
has  arisen  in  respect  to  party  walls.  It  was  held  in  one  case, 
that  if  the  buildings,  in  respect  to  which  there  was  a  mutual 
easement  of  a  party  wall,  were  destroyed  by  fire,  the  ease- 
ment would  be  extinguished,  neither  party  could  require  the 
other  to  help  rebuild  the  wall,  and,  if  one  built  the  wall  upon 
his  own  land,  the  other  could  not  claim  any  right  to  use  it.*^ 

And  in  a  case  where  the  wall  had  become  so  ruinous  as  to 
require  to  be  taken  down,  Denio,  J.  was  inclined  to  hold  the 

1  3  Toullier,  Droit  Civil  Fran^ais,  496. 

2  Hancoclv  v.  Wentworth,  5  Mete.  446,451  ;  1  Rolle,  Abr.  934,  935. 
8  Race  V.  Ward,  7  E.  &  Black,  384. 

*  Allen  V.  Ormond,  8  East,  4  ;  Woolr.  Ways,  73  ;  per  Patteson,  J.,  Duncan 
V.  Louch,  6  Q.  B.  904,  915. 

^  Hastings  v.  Livermore,  7  Gray,  194. 
6  Sherred  v.  Cisco,  4  Sandf.  480. 
40 


626  THE   LAW   OF   EASEiMENTS   AND   SERVITUDES.  [Cii.  V. 

easement  of  party  wall  extinguislied  in  the  same  way  as  if 
destroyed  by  fire  ;  ^  though  in  Campbell  v.  Mesier,''^  Chancel- 
lor Kent  had  held  that,  if  a  party  wall  needs  repair,  one  of 
the  parties  can,  after  request  made,  proceed  to  make  the  re- 
pairs, and  call  upon  the  other  party  for  contribution. 

M.  Toullier  states  the  general  rule  of  law  to  be  substan- 
tially as  follows.  Servitudes  cease  when  the  subjects 
'[*536]  of  *them  happen  to  be  in  that  condition  that  they 
cannot  be  used.  As  if  the  dominant  and  servient 
estates  go  to  ruin,  or  they  are  submerged,  or  the  house 
which  owes  the  servitude  and  that  to  which  it  is  due  are 
burned  or  demolished. 

It  would  be  the  same  if  the  cause  of  the  servitude  should 
cease,  as,  for  example,  if  a  spring  where  I  have  a  right  to 
draw  water  becomes  dry,  I  should  not  only  lose  the  right  of 
drawing  water,  I  should  lose  the  right  of  passing  over  the 
neighboring  tenement,  because  the  right  of  passage  was  only 
accessory  to  the  right  of  drawing  water,  and  that  which  is 
accessory  cannot  subsist  when  the  principal  right  is  lost. 

But  servitudes  revive  when  the  estates  are  so  restored  that 
the  servitude  can  be  again  used,  unless  a  space  of  time  shall 
have  then  elapsed  sufficient  to  raise  a  presumption  that  such 
servitude  has  been  extinguished.  Thus  when  one  recon- 
structs a  party  wall,  or  a  housB  which  has  been  demolished 
or  destroyed  by  fire,  the  servitudes  both  active  and  passive 
are  continued  in  respect  to  the  new  wall  or  new  house,  under 
certain  limitations  similar  to  that  above  stated.^ 

1  rartridge  v.  Gilbert,  15  N.  Y.  601,  615. 

-  Campbell  v.  Mesier,  4  Johns.   Ch.  334;  2  Fournel,  Traite'  du  Voisinage, 
236 ;  5  Duranton,  Cours  de  Droit  Franc^ais,  ed.  1834,  382  ;  Code  Nap.,  Art.  665. 
8  3  Toullier,  Droit  Civil  Fran9ais,  522. 


Sfxt.  4.]     ACTS  OF  OWNERS  OF  EASEMENTS  AFFECTING  SAME.        627 


SECTION    IV. 

OF    ACTS    OF    OWNERS    OF   EASEMENTS   AFFECTING    RIGHTS   TO 
THE    SAME. 

1.  Acts  to  have  eflect  upon  easements  must  be  so  in  '^nded. 

2.  No  parol  release  affects  a  right  of  easemejit. 

3.  Abusing  an  easement  does  not  destroy  the  right. 

4.  Effect  of  wrongfully  increasing  the  extent  of  an  easement. 

5.  One  may  not  alter  the  condition  of  dominant  or  servient  estate. 

6.  Luttrell's  case.     Change  of  mode  of  enjoyment. 

7.  If  one  change  lights,  the  other  may  stop  them. 

8.  Light  limited  to  the  prescriptive  quantity  enjoyed. 

9.  Enlarging  a  window  does  not  destroy  the  original  right. 
10.  Same  subject. 

*1.  In  considering  what  acts  of  the  owner  of  an  [*5o7] 
easement,  or  of  the  estate  in  or  over  which  it  exists, 
will  operate  to  extinguish  the  same,  it  may  be  somewhat  dif- 
ficult to  classify  them.  But  it  may  be  stated,  generally,  that 
the  act  must  be  such  as  indicates  an  intention  to  extinguish 
the  easement,  or  it  must  be  something  which  enhances  the 
burden  upon  the  servient  estate,  to  the  injury  of  the  same, 
against  the  consent  of  the  owner  thereof. 

2.  A  mere  parol  release  of  an  easement,  or  an  agreement 
not  to  exercise  the  same,  would  of  itself  be  of  no  avail.^ 

3.  Nor  does  one  having  an  easement  in  another's  land 
lose  it  by  merely  abusing  it,  or  using  it  for  purposes  for 
which  he  has  no  right  to  exercise  it.  Thus  if  one  having  a 
right  of  way  for  certain  purposes  across  another's  land  use  it 
for  other  and  different  purposes,  he  would,  as  to  such  use, 
be  a  trespasser.  But  it  would  not  justify  the  owner  in  stop- 
ping the  way  altogether.^ 

4.  But  if,  in  the  first  place,  the  owner  of  the  easement 
materially  change  the  condition  of  the  estate  to  which  the 
same  belongs,  so  as  thereby  to  increase  the  burden  of  the 

1  Dj-er  V.  Sanford,  9  Mete.  395  ;  Liggins  i'.  Inge,  7  Bing.  682. 
^  Mendell  v.  Delano,  7  Mete.  176. 


628  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

servitude  upon  the  servient  estate,  and  the  enjoyment  of  the 
excess  cannot  be  separated  from  that  of  the  original  riglit,  it 
may  operate  to  destroy  or  extinguish  the  right  of  easement 
altogether.^ 

This  subject  has  been  somewhat  considered  in  its  relation 
to  easements  of  water,  and  it  may  be  necessary  to  repeat 
some  things  that  are  there  said  in  order  to  apply  them  to 
the  general  doctrine  of-  easements. 

5.  The  language  of  Jervis,  C.   J.,  in  Wood  v.   Copper 
Miners'  Co.,  is  :  "  In  the  case  of  an  easement,  you  cannot 
alter  the  condition  of  either  the  dominant  or  servient  tene- 
ment." ^ 

[*538]  *  And  where  one  had  an  easement  of  a  drain  which 
the  land-owner  was  bound  to  keep  in  repair,  and  he 
wrongfully  increased  the  quantity  of  water  which  he  had  a 
right  to  discharge  through  the  same,  he  thereby  lost  the 
right  to  require  the  other  party  to  keep  the  same  cleansed 
for  his  accommodation.^ 

6.  One  of  the  leading  cases  upon  this  subject  is  Luttrell's. 
In  that  case  the  plaintiff,  having  two  old  fulling-mills,  tore 
them  down  and  erected  two  corn-mills  upon  the  same  privi- 
lege, and  the  question  was  whether  by  such  a  change  the 
owner  lost  the  prescriptive  right  to  the  use  of  the  water  in 
the  manner  in  which  he  had  enjoyed  it,  in  respect  to  his  for- 
mer mills.  Various  cases  are  referred  to  in  the  discussion  of 
the  point  raised,  illustrating  acts  that  will  and  such  as  will 
not  operate  to  extinguish  an  existing  easement.  It  was 
held  that  the  change  did  not  affect  the  prescriptive  right, 
"  provided  always  that  no  prejudice  may  thereby  arise  either 
by  diverting  or  stopping  of  the  water,  as  it  was  before." 

"  So  if  a  man  have  estovers,  either  by  grant  or  prescrip- 
tion, to  his  house,  although  he  alter  the  rooms  and  chambers 
of  his  house,  as  to  make  a  parlor  where  it  was  the  hall,  or 
the  hall  where  the  parlor  was,  and  the  like  alterations  of 

1  JoiiOi  V.  Tapliiig,  11  C.  B.  n.  8.  283. 

2  Wood  V.  Cojiper  Miner's  Co.,  14  C.  B.  428,  44G. 
8  Shtirpc  V.  Hancock,  7  Mann.  &  G.  354. 


Sect.  4.]     ACTS  OF  OWNERS  OF  EASEMENTS  AFFECTING  SAME.        629 

qualities,  and  not  of  the  house  itself,  and  without  making 
new  chimneys,  by  which  no  prejudice  doth  accrue  to  the 
owner  of  the  wood,  it  is  not  destroying  of  the  prescription. 
And  although  he  build  new  chimneys  or  makcth  a  new  ad- 
dition to  his  old  house,  by  that  he  shall  not  lose  his  prescrip- 
tion, but  he  cannot  imply  or  spend  any  of  the  estovers  in  the 
new  chimneys,  or  in  the  part  newly  added.  Tlie  same  law 
of  conduits  and  water-pipes  and  the  like."  It  was  held,  in 
this  case,  that  the  alteration  being  of  the  qiiaHly,  and  not  of 
the  substance  of  the  tenement,  and  it  being  with- 
out any  prejudice  in  the  *  water-course  to  the  owner  [*539] 
thereof,  did  not  affect  the  prescriptive  right  belong- 
ing to  the  mill.i 

In  Luttrell's  case,  the  court  refer  to  the  case  of  an  ease- 
ment of  light  belonging  to  a  house,  the  owner  of  which 
changes  it.  The  cases  upon  this  point  will  be  found  to  be 
numerous,  and  in  respect  to  some  of  them  a  difficulty  exists 
in  drawing  a  precise  and  definite  rule  which  may  apply  to 
other  cases.  Thus  it  is  said  in  Luttrell's  case  :  "  So  if  a  man 
have  an  old  window  to  his  hall,  and  afterwards  he  turn  the 
hall  to  a  parlor,  or  any  other  use,  yet  it  is  not  lawful  for  his 
neighbor  to  stop  it,  for  he  shall  prescribe  to  have  the  light  in 
such  part  of  his  house."  ^ 

7.  In  accordance  with  what  has  been  stated,  it  was  held 
in  Garritt  v.  Sharp,  that  if  one,  having  an  easement  of  light 
over  another's  estate,  alter  his  premises  so  that  the  enjoy- 
ment of  the  liglit  will  be  more  disadvantageous  to  the  ser- 
vient tenement  than  that  which  he  before  had,  the  latter  may 
stop  the  same.^ 

8.  And  an  easement  of  light  cannot  be  carried  beyond  the 
enjoyment  of  access  of  light  through  the  same  aperture,  or 
one  of  the  same  dimensions,  and  in  the  same  position,  as  it 

1  LuttrcH's  case,  4  Rep.   86-89.     Sec  Allan  v.  Gomnie,   11    Adolj)!!.  &  E. 
7.59  ;  M'Donald  v.  Bear  River  Co.,  13  Cal.  220. 

2  Luttrell's  case,  4  Rep.  87  a. 

»  Garritt  i-.  Sharp,  3  Adolph.  &  E.  325  ;  Jones  v.  Tapling,  11   C.  B.  n.  s.  283. 
Seeposi,  pi.  10. 


630  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

had  been  used  and  enjoyed  at  the  time  when  the  consent  or 
grant,  which  prescription  implies,  was  given.  Therefore, 
where  one  had  an  ancient  window  in  his  wall,  and  carried 
out  the  wall  several  feet  in  the  form  of  a  bow,  and  in  it  in- 
serted three  windows  instead  of  the  original  one,  but  not 
occupying  the  same  place  as  the  former  one,  it  was  held  that 
the  change  prevented  his  claiming  for  these  the  prescriptive 

right  of  light  which  belonged  to  the  former  window. ^ 
[*o40]       *9.    It  is,  however,  stated  in  one  case  to  bo  law, 

that,  by  merely  enlarging  a  window  in  one's  house, 
he  does  not  lose  the  right  to  enjoy  the  original  space  of  access 
of  light,  though  he  cannot  claim  a  right  to  any  easement  out- 
side of  such  space.  But  the  owner  of  the  adjacent  estate  may 
obstruct  all  except  the  original  extent  of  the  aperture.^ 

10.  The  subject  had  been  agitated  and  variously  decided 
by  the  English  courts  as  to  the  effect  upon  an  easement  of 
light  which  any  one  had  in  favor  of  a  dwellingThouse,  if  he 
were  to  enlarge  his  ancient  windows,  and  how  far  an  ad- 
jacent owner  could,  for  that  cause,  stop  any  portion  of  this 
ancient  light  in  his  attempt  to  exercise  what  seems  to  be 
conceded  as  a  right  by  all  authorities,  to  stop  or  darken  the 
newly  enlarged  portions  of  the  windows.  Among  the  cases 
involving  this  question  were  Renshaw  v.  Bean,'^  Hutchinson 
V.  CopestakCj*  Bincks  v.  Park,^  and  Jones  v.  Tapling,^  in  its 
earlier  stages.  But  the  question  was  finally  settled  in  the 
House  of  Lords,  where  the  doctrine  laid  down  in  the  two 
first  cases  was  overruled,  and  the  irreconcilable  differences 
of  opinion  between  the  judges  in  the  other  cases  were  ob- 
viated. In  the  final  decision  of  the  case  it  was  held,  that, 
inasmuch  as  it  was  doing  no  wrong  on  the  part  of  the  owner 

1  Bkinchtml   v.  Bridges,  4  Adolph.  &  E.    176  ;  Hutchinson   v.  Copestake,  9 
C.  B.  N.  8.  863 ;  Chcrriiigton  v.  Abney  Mil',  2  Vern.  646; 
'^  Chandler  v.  Thompson,  3  Campb.  80. 
3  Renshaw  ».  Bean,  18  Q.  B.  112. 
*  Hutchinson  v.  Copestake,  9  C.  B.  n.  s.  863. 
6  Binckes  v.  Park,  11  C.  B.  n.  s.  324, 
«  Jones  V.  Tiipling,  11  C.  B.  n.  s.  283  ;  12  C.  B.  n.  s.  826  ;  ante,  pi.  7. 


Sect.  5.]  EFFECT   OF   ABANDONING  AN  EASEMENT.  631 

of  the  house  to  enlarge  his  windows,  he  lost,  thereby,  no 
right  of  enjoying  his  prescriptive  easement  of  light,  so  that  if, 
in  attempting  to  stop  or  obstruct  the  enlarged  capacity  of 
these  windows,  the  adjacent  owner  interfered  with  tlie  ex- 
tent of  the  ancient  lights,  he  was  a  tort  feasor,  and  liable  in 
damages  for  so  doing.^ 

And  in  another  case  it  is  said,  "  It  has  been  held  that 
where  a  party  enlarges  an  ancient  window,  the  owner  of  the 
adjoining  land  cannot  obstruct  any  part  of  the  light  which 
ought  to  pass  through  the  space  occupied  by  an  ancient  win- 
dow." ^ 

*SECTION   V.  [*542] 

EFFECT   OF   ABANDONING   AN   EASEMENT. 

1.  An  act  of  abandonment  requires  intent. 

2.  Stokoe  V.  Singers.     Stopping  light  not  an  abandonment. 

3.  Lovell  V.  Smith.     Substituting  a  way  not  an  abandonment. 

4.  Loss  of  easement  of  liglit  by  ceasing  to  occupy. 

5.  Taylor  v.  Hampton.     What  amounts  to  an  abandonment. 

6.  Corning  v.  Gould.     Doctrine  applied  to  ways. 

7.  Partridge  v.  Gilbert.  Stopping  a  way  defeating  the  right. 
S.  IJebuilding  house  with  new  windows,  loss  of  ancient  light. 
9.  Length  of  time  not  necessary  to  work  abandonment. 

10.  Changing  wheel  of  a  mill  may  affect  the  easement. 
IL  Change  of  premises  not  affecting  natural  easements. 

12.  Difl'erence  in  effect  of  act  of  God  and  of  owner  on  easements. 

13.  What  owner  must  do,  if  suspended  by  act  of  God. 

14.  Effect  of  removal  of  mill  by  one,  and  a  new  one  by  another. 

15.  Acts  done  by  owner  on  dominant  estate  affecting  easement. 

1.  The  owner  of  an  easement  may  destroy  his  right  to  the 
same  by  actually  abandoning  the  right  as  well  as  the  enjoy- 
ment, especially  if  a  third  party  become  interested  in  the 
servient  estate  after  such  act  of  abandonment ;  and 
it  would  *operate  unjustly  upon  him  if  the  exercise  [*543] 
of  the  easement  were  resumed  in  favor  of  the  domi- 
nant estate.     It  is  not  easy  to  define,  in  all  cases,  what  would 

1  Jones  V.  Taplinir,  13  C.  B.  n.  s.  876. 

^  Thomas  v.  Thomas,  2  Cromp.  M.  &  R.  34,  40. 


632  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  V. 

bo  such  act  of  abandonment  as  would  destroy  a  right  of 
easement,  and  each  case  seems  to  be  a  matter  for  a  jury  to 
determine.  But  nothing  short  of  an  intention  so  to  abandon 
the  right  would  operate  to  that  effect,  unless  other  persons 
have  been  led  by  such  acts  to  treat  the  servient  estate  as  if 
free  of  the  servitude,  and  the  same  could  not  be  resumed 
without  doing  an  injury  to  their  rights  in  respect  to  the 
same.  And  in  this  it  is  not  intended  to  embrace  questions 
which  may  arise  from  a  mere  non-user  of  an  easement. 

2.  The  case  of  Stokoe  v.  Singers  (in  1857)  presents  sev- 
eral of  the  points  above  referred  to.  In  that  case  there  was, 
in  1837,  an  ancient  warehouse  with  windows  on  both  sides. 
In  that  year  the  owner  blocked  up  the  windows  on  one  side 
of  the  house,  on  the  inside  thereof,  with  rubble  and  plaster. 
The  bars  remained  on  the  outside,  so  that  one  there  could 
see  that  there  had  been  windows  there.  The  windows  re- 
mained in  this  state  till  1856.  The  defendant,  having  be- 
come the  owner  of  the  land  next  to  the  side  of  the  ware- 
house on  which  the  windows  had  thus  been  stopped,  was 
preparing  to  build  a  house  thereon  which  would  effectually 
darken  the  windows,  and  actually  erected  a  board  on  his 
own  land  which  stopped  them,  and  for  this  an  action  was 
brought  before  the  twenty  years  expired  from  the  stopping  of 
the  windows  by  the  plaintiff  in  1837.  The  judge  who  tried 
the  case  instructed  the  jury  that  the  right  to  light  and  air 
"  might  be  lost  by  abandonment,  and  that  closing  the  win- 
dows, with  the  intention  of  never  opening  them  again,  would 
be  an  abandonment  destroying  the  right,  but  that  closing 

them  for  a  temporary  purpose  would  not  be  so Though 

the  person  entitled  to  the  right  might  not  really  have  aban- 
doned his  right,  yet  if  he  manifested  such  an  appearance  of 
having  abandoned  it  as  to  induce  the  owner  of  the  adjoining 

land  to  alter  his  position,  in  the  reasonable  belief 
[*544]   *that  the  right  was  abandoned,  there  would  be  a 

preclusion,  as  against  him,  from  claiming  the  right." 
He  left  it  to  the  jury,  whether  they  believed  that  the  plain- 


Sect.  5.]  EFFECT    OF   ABANDONING    AN   EASEMENT.  633 

tiff's  predecessor  blocked  up  the  windows  with  tlie  intention 
of  abandoning  them  forever,  and  told  them,  unless  he  did, 
the  right  was  not  gone.  In  the  course  of  the  discussion  of 
the  case,  Earlc,  J.  says  :  "  In  Moore  v.  Rawson  it  seems  to 
be  said,  that  an  intention  to  abandon  it  permanently  destroys 
it,  unless  a  contrary  intention  be  manifested  within  a  reason- 
able time,  which  is  not  defined.  I  should  feel  inclined  to 
say,  that  the  intention  permanently  to  abandon  it  would 
destroy  it  as  soon  as  it  was  communicated  to  the  owners  of 
the  servient  tenement,  without  lapse  of  time."  Lord  Camp- 
bell, C.  J.  :  "I  doubt  whether  the  communication  of  that 
intention  destroys  the  right  until  the  communication  is  acted 
upon.  Then  it  certainly  does."  The  final  judgment  by 
Earle,  J.  was  :  "  Taking  the  whole  summing  up  togetlier,  it 
seems  to  us  the  true  points  were  left  by  the  judge  to  the 
jury.  We  consider  the  jury  to  have  found  that  tlie  plain- 
tiff's predecessor  did  not  so  close  up  his  lights  as  to  lead  the 
defendant  to  incur  expense  or  loss,  on  the  reasonable  belief 
that  they  had  been  permanently  abandoned,  nor  so  as  to 
manifest  an  intention  of  permanently  abandoning  the  right 
of  using  them."  ^ 

In  Perkins  v.  Dunham  the  same  rule  was  applied  as  in  the 
above  case,  that  the  question  of  abandonment  was  one  for 
the  jury  .2 

3.  In  Lovell  v.  Smith  there  was  an  attempt  to  establish 
an  abandonment  of  a  way  under  the  following  facts.  Tlie 
owner  of  a  right  of  way  across  the  land  of  another  made  a 
parol  agreement  with  him  to  substitute  another  way  across 
the  same  land  and  to  give  up  the  one  he  had.  He  accord- 
ingly made  use  of  the  new  way  for  some  years,  less  than 
twenty,  and  the  question  arose  whether  he  had  not 
thereby  *abandoned  the  first  way  and  lost  it.  But  [*545] 
the  court  lield  that  he  had  not,  for  that  such  was  not 
his  intention  ;  that  he  merely  intended  to  substitute  one  for 
the  other,  and  as  he  had   not  enjoyed   the  new  one   the 

1  Stokoc  V.  Singers,  8  Ellis  &  B.  31  -39. 

2  Perkius  v.  Dunham,  3  Strobh.  224. 


634  THE   LAW    OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

requisite  time  to  acquire  it  Ijy  prescription,  the  owner  of  the 
servient  estate  niiglit,  at  his  election,  revoke  the  license  by 
which  lie  used  it,  and  leave  him  without  any  way  if  his  first 
right  was  lost.  To  work  an  abandonment  of  a  right  of  way 
acquired  by  prescription,  there  must  be  a  release  by  deed,  or 
evidence  from  which  a  jury  may  presume  a  release.^ 

4.  But  in  case  of  light,  the  right  to  which  was  acquired 
by  occupancy,  the  same  ceases  when  the  person  who  ac- 
quired it  discontinues  the  occupancy.^ 

5.  What  shall  be  an  act  of  abandonment  of  an  easement 
in  any  given  case  depends,  of  course,  upon  the  nature  of  the 
property  and  the  easement.  In  Taylor  v.  Hampton,  tlic 
easement  in  question  was  a  prescriptive  right  of  flowing 
back  water  upon  another's  land  for  the  use  of  a  mill.  The 
owner  of  the  mill  to  which  this  right  belonged,  removed  it 
up  the  stream,  and  established  it  upon  a  new  spot,  and 
ceased  to  flow  the  former  land.  The  owner  of  this  land 
then  converted  it  into  a  rice-field,  and  cultivated  it,  and 
subsequently  sold  it.  And  it  was  held  that  the  mill-owner 
could  not  afterwards  resume  the  occupancy  of  the  land  by 
replacing  his  mill,  and  flowing  it  again .'^ 

In  Hale  v.  Oldroyd  the  owner  of  three  closes  had  an  an- 
cient pond  for  their  accommodation,  which  was  supplied  by 
water  through  a  ditch  in  another's  land.  He  dug  a  pond 
in  each  of  the  closes  as  a  substitute  for  the  general  one,  and 
enjoyed  the  same  for  twenty  years,  the  old  pond  having,  in 
the  mean  time  become  filled  up  with  rubbish.      But  upon 

a  trial  for  diverting  this  water,  his  title  to  the  three 
[*546J    ponds  *by  prescription  having  failed,  he  was  allowed 

to  make  good  his  original  right  to  fill  the  ancient 
pond,  not  having  lost  his  right  by  abandonment,  as  he  did 
not  intend  to  abandon  the  right  to  the  water.'* 

1  Lovell  V.  Smith,  3  C.  B.  n.  s.  120 ;  Wright  v.  Freeman,  5  Harr.  &  J.  467 
478.     Contra,  Pope  v.  Devercaux,  5  Gray,  409. 

2  Per  Litlledale,  J.,  Moore  v.  Rtivvson,  3  Barnew.  &  C.  332,  341 . 

3  Taylor  v.  Hampton,  4  M'Cord.  96. 

*  Hale  V.  Oldroyd,  14  Mccs.  &  \V.  789. 


Sect.  5.]  EFFECT   OF   ABANDONING   AN   EASEMENT.  635 

6.  The  case  of  Corning  v.  Gould  illustrates  many  of  the 
positions  above  taken,  as  they  apply  to  ways.  In  that  case, 
there  was  a  way  between  the  plaintiff's  premises  and  de- 
fendant's, the  centre  line  of  which  was  the  dividing  line 
between  the  estates.  The  plaintiff  built  upon  a  part  of  tlic 
way  next  his  estate,  and  run  a  fence  along  the  middle  of  it, 
leaving  the  other  half  within  the  enclosure  of  the  adjacent 
estate.  This  was  less  than  twenty  years  before  the  action 
brought.  In  that  state  the  owner  of  the  other  estate  sold  it 
to  the  defendant,  who  proceeded  to  occupy  the  part  of  the 
way  inside  of  the  fence  next  to  his  estate.  It  was  held  that 
the  plaintiff  had,  by  his  act,  abandoned  and  lost  the  ease- 
ment, since  his  actions  showed  an  intent  to  do  so  on  his  part, 
and  this  was  followed  by  the  act  of  the  party  owning  on  the 
other  side  of  the  line,  constituting  a  joint  abandonment  by 
both,  and  the  defendant  purchased  the  estate  in  this  condi- 
tion.^ 

7.  So  in  Partridge  v.  Gilbert,  where  a  passage  over  two 
adjoining  estates  through  an  arch  in  the  dividing  line  of  the 
estates  was  stopped  by  the  parties  converting  the  arch  into 
a  solid  wall,  the  easement  of  way  was  mutually  abandoned.^ 

8.  In  a  leading  case  upon  this  subject,  where  the  ease- 
ment claimed  was  that  of  light  and  air,  the  owner  of  tlie 
building  to  which  it  was  appurtenant  tore  it  down,  and 
erected  another  with  a  blank  wall,  and  sutfered  the  same  to 
remain  in  that  situation  for  seventeen  years.  A  question 
having  arisen  whether  the  house  had,  by  this,  lost  this 
casement,  the  court  held  that  it  was  incumbent  upon  the 
owner  to  show  that,  at  the  time  when  he  erected  the 
*blank  wall,  and  apparently  abandoned  the  use  of  [*o47] 
the  windows  that  gave  the  light  and  air,  it  was  not 

a  permanent,  but  a  temporary  abandonment,  and  that  he  in- 
tended to  resume  the  enjoyment  within  a  reasonable  time. 

1  Corning  v.  Gould,  16  Wend.  531,  538;  Pardessus,  Traite  des  Servitudes 
478. 

2  Partridge  i;.  Gilbert.  15  N.  Y.  601. 


636  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cii.  V. 

By  building  tlic  blank  wall,  lie  may  have  induced  another 
person  to  become  the  purchaser  of  the  adjoining  ground  for 
building  purposes,  and  it  wotild  be  most  unjust  that  he 
should  afterwards  prevent  such  person  from  carrying  those 
purposes  into  effect.  And  it  was  held  that  the  plaintiff  could 
not  recover  for  an  obstruction  to  the  light  of  windows  opened 
in  this  blank  wall.^ 

In  Lawrence  v.  Obee  the  same  doctrine  was  applied,  ex- 
cept that,  in  that  case,  the  window  had  been  bricked  up,  and 
remained  so  for  twenty  years,  which  was  held  to  be  an 
abandonment.  And  an  adjacent  owner,  having  constructed 
a  privy  upon  his  premises,  which  was  not  a  nuisance  so 
long  as  the  window  remained  closed,  was  held  not  liable 
for  such  erection,  although,  when  the  first  owner  reopened 
his  window,  it  became  a  nuisance  to  the  first-mentioned 
house. 2 

9.  Although,  as  will  be  seen,  an  abandonment  is  some- 
times inferred  from  a  non-user  for  twenty  years,  it  seems  to 
depend  less  upon  the  duration  of  the  time  than  the  acts 
which  accompany  the  ceasing  to  use  the  easement,  for  its 
effect  upon  the  right.  The  length  of  time  that  this  is  con- 
tinued is  one  of  the  elements  from  which  the  intention  to 
abandon  or  retain  the  right  is  inferred.  It  is  not  therefore 
necessary  to  have  ceased  to  use  a  private  way  the  whole 
term  of  twenty  years  in  order  to  lose  it.  And  among  the 
illustrations  given  to  this  effect,  is  that  of  a  way  to  a  malt- 
house  through  a  gate  leading  from  a  lane,  and  the  owner 
were  to  tear  down  the  malt-house,  and  erect  a  wall  where 
the  gate  was.  It  would  authorize  the  inference  that 
[*548]  the  *way  had  been  effectually  abandoned.  The  ces- 
ser to  use,  coupled  with  any  act  clearly  indicative  of 
an  intention  to  abandon  the  right,  would  have  the  same  ef- 
fect as  a  release,  without  any  reference  to  the  time  during 

1  Moore  v.  Kawsoii,  H  Barncw.  &  C.  332  ;  Dyer  v.  Sanford,  9  Mete.  395.     Sco 
Ballard  y.  Butler,  30  Me.  94. 

2  Lawrence  v,  Obee,  3  Cainpb.  514. 


Sect.  5.]  EFFECT   OF   ABANDONING   AN   EASEMENT.  637 

which  such  cesser  has  continued.  And  in  the  same  case,  it 
was  held  that  the  owner  of  the  servient  estate,  over  whicli 
the  dominant  estate  had  a  right  of  way,  could  not  affect  the 
right  of  the  latter  by  dedicating  the  way  to  the  public  use.^ 

But  Lord  Campbell,  in  Stokoe  v.  Singers,  said  the  case  of 
Regina  ik  Chorley  was  "  an  authority  that  an  abandonment 
is  effectual  if  communicated  and  acted  upon.  It  goes  no 
further."  ^ 

In  Grain  v.  Fox,  one  having  a  riglit  of  way  to  a  house 
across  another's  close,  took  down  the  house,  and,  after 
twelve  years,  enclosed  the  way  and  cultivated  it.  It  was 
held  that  he  had  abandoned  it  as  an  easement.^ 

10.  In  one  case,  a  party  having  acquired  a  right  to  the 
use  of  water  for  operating  a  mill  with  a  low  wheel,  clianged 
the  use,  so  as  to  employ  a  larger  wheel  and  greater  head  of 
water,  and  continued  this  long  enough  to  acquire  a  right  to 
the  same.  He  then  voluntarily  discontinued  the  use  of  the 
larger  wheel,  and  resumed  that  of  the  smaller  one,  and  it 
was  held  that  he  thereby  abandoned  the  right  to  maintain 
the  increased  head  of  water.* 

11.  But  this  would  not  apply  to  the  case  of  an  interrup- 
tion of  the  natural  flow  of  a  stream  of  water  through  one's 
premises.  As  where  one  who  had  enjoyed  the  waters  of  a 
natural  stream,  flowing,  in  a  particular  channel,  through  his 
land  for  nineteen  years,  sued  for  an  obstruction  to  the  same 
above  his  premises,  it  was  held  to  be  no  defence,  that,  prior 
to  that  time  the  stream  had  been  obstructed  for  a  time,  or 
that  the  course  of  the  stream  had  been  changed 

*  above  the  plaintiff's  land,  by  the  act  of  the  plain-  [*549] 
tiff  himself.^ 

12.  In  the  above-cited  case  of  Taylor  v.  Hampton,  the 

1  Regina  v.  Chorley,  12  Q.  B.  515 ;  Pope  v.  Devereux,  5  Gray,  409. 

2  Stokoe  V.  Singers,  8  EUis  &  B.  31,  37. 
8  Grain  v.  Fox,  16  Barb.  184. 

*  Drewett  i'.  Sheard,  7  Carr.  &  T.  465. 

5  Hall  V.  Swift,  4  Biug.  n.  c  381.     See  Patteson,  J.,  in  Carr  v.  Foster,  3  Q.  B. 
581,  585. 


638  THE   LAW    OF    EASEMENTS    AND   SERVITUDES.  [Cir.  V. 

judge  thus  discriminates  between  the  effect  of  the  act  of  the 
party  owning  the  easement  and  the  act  of  God  in  destroying 
or  interrupting  the  same.  "  Wliere  a  right  is  suspended  by 
the  act  of  God,  as  by  the  drying  up  of  a  spring,  it  will  revive 
again  if  the  spring  chance  to  flow.  But  if  it  be  suspended 
by  the  act  of  the  party,  as  by  building  a  house  or  a  wall,  it 
would  not  be  restored,  even  though  the  oljstacle  should  be 
removed  by  a  stroke  from  heaven."  ^ 

13.  But  it  would  seem  that,  if  the  enjoyment  of  the  ease- 
ment was  suspended  by  the  act  of  God,  and  might  be  re- 
stored by  the  owner  thereof,  but  he  fail  to  do  so  within  a 
reasonable  time,  and  in  the  mean  time  another  party  is  suf- 
fered to  go  on  and  enjoy  an  easement  upon  his  own  land, 
which  he  could  onjy  do  upon  the  assumption  that  the  first 
was  abandoned,  it  would  have  the  effect  to  defeat  the  origi- 
nal easement  altogether.  Thus  where  one  had,  by  user, 
acquired  the  right  to  divert  water  from  a  stream  for  the 
working  of  a  mill,  but  the  mill  was  carried  away,  and  the 
channel  filled  up  by  which  the  water  of  the  stream  had  been 
diverted,  and  it  remained  so  for  forty-five  years,  during  which 
time  a  mill  below  had  enjoyed  the  use  of  the  natural  stream, 
it  was  held  that  the  owner  of  the  original  mill-site  could  not, 
by  erecting  a  new  mill  thereon,  and  opening  the  old  channel, 
have  a  right  to  divert  the  water  into  its  former  channel.  The 
lower  mill  had,  by  this  period  of  enjoyment,  acquired  the 
right  to  the  natural  flow  of  the  stream,  which  the  former 
mill-owner  might  not  disturb.^ 

14.   And  the  case  put  by  Tindal,  C.  J.,  in  Liggins 

[*550]   V.  Inge,  *is  this  :  "  Suppose  a  person  who  formerly 

had  a  mill  upon  a  stream  should  pull  it  down  and 

remove  the  works,  with  the  intention  never  to  return,  could 

it  be  held  that  the  owner  of  other  land  adjoining  the  stream 

1  Taylor  v.  IIam])ton,  4  McConl,  96.  See  Corning  v.  Gonid,  IG  Wend.  531, 
541. 

2  Thomas  u.  Hill,  31  Mc.  252.  Sec  ante,  sect.  3,  pi.  9;  Dunklee  v.  Wilton 
E.  R.,  4  Foster,  489. 


Sect.  6.]  EFFECT    OF   NON-USER    OF   EASEMENTS.  639 

Diiglit  not  erect  a  mill  and  employ  the  water  so  relinquished  ? 
or  that  he  could  be  compellal)le  to  pull  down  his  mill,  if  the 
former  mill-owner  should  afterwards  change  his  determina- 
tion, and  wish  to  rebuild  his  own?"  The  question  would 
be  for  the  jury,  whether  he  had  C(yupletely  abandoned  the 
use  of  the  stream  or  not.^ 

15.  And  the  court  in  Dyer  v.  Sanford  say  :  "  It  may  well 
be  maintained,  upon  the  authorities,  that  the  owner  of  a 
dominant  tenement  may  make  such  changes  in  tlie  use  and 
condition  of  his  own  estate  as  in  fact  to  renounce  the  ease- 
ment itself.  And  this  may  be  relied  on  by  the  owner  of  the 
servient  tenement  as  evidence  of  abandonment."  '^ 


SECTION   VI. 

EFFECT   OF  NON-USER   OF   EASEMENTS. 

1.  Must  be  an  adverse  user  to  liave  non-user  an  abandonment. 

2.  No  length  of  non-user  bars  a  right  granted  by  deed. 

3.  What  acts  on  servient  estate  defeat  a  non-used  right. 

4.  Doe  V.  Butler.     What  presumption  arises  from  non-user. 

5.  Eft'ect  of  non-user  of  a  right  gained  by  prescription. 

6.  Grounds  and  extent  of  presumption  from  non-user. 

7.  Twenty  years  non-user,  if  explained,  no  abandonment. 

8.  What  necessary  to  have  non-user  operate  an  abandonment. 

9.  Hatch  V.  Dwight.     Case  of  a  mill ;  same  subject. 

10.  Williams  v.  Nelson.     Non-user  of  right  to  flow  lands. 

11.  Non-user  of  right  to  flow  under  Massachusetts  mill  laws. 

12.  Farrar  v.  Cooper.     Nou-user  with  acts  of  abandonment. 

13.  Shields  v.  Arndt.     Right  lost  by  non-user  extinguished. 

14.  When  one  is  bound  to  inquire  if  the  other  has  abandoned. 

1.   In  some  cases  an  abandonment  of  an  easement  is  in- 
ferred from  a  non-user  of  the  right.      But  though 
this  is  *  true,  under  certain  circumstances,  it  is  be-   [*551] 
lieved  never  to  apply  unless  the  non-user  shall  have 
been  of  as  long  duration  as  the  period  that  is  required  in 
order  to  gain  the  easement  by  user,  and  rarely,  if  ever,  uii- 

1  Liggins  V.  Inge,  7  Bing.  682. 

2  Dyer  ;;.  Sanford,  9  Mete.  395,  401. 


640      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  V. 

less  there  has  been,*  besides,  such  a  use  by  the  owner  of  the 
premises  in  or  over  which  the  easement  has  been  enjoyed,  as 
to  indicate  a  claim  of  right  wliicli  is  adverse  to  the  enjoy- 
ment of  the  easement.  Here,  as  in  the  case  of  acts  of  aban- 
donment, the  non-user  must  be  of  such  a  character  and  du- 
ration as  to  show  an  intent  to  abandon  the  easement,  or  it 
must  have  induced  another  to  expend  money  upon  the  sup- 
position of  such  abandonment,  which  is  known  and  acqui- 
esced in  by  the  one  who  might  otherwise  claim  it,  and  where 
to  enforce  the  right  of  easement  would  work  injustice  upon 
an  innocent  party .^ 

And  even  a  public  easement  in  a  highway  may  be  lost  by 
non-user.  The  law  in  such  cases  presumes  an  extinguish- 
ment by  abandonment  for  a  long  time.  But  an  encroach- 
ment upon  a  liighway  will  not  destroy  the  easement  in  the 
part  thus  encroached  upon,  if  for  a  less  period  of  time  than 
twenty-one  years.^  Very  strong  evidence  must  generally  be 
given  of  abandonment,  yet  such  evidence  need  be  made 
much  less  strong  when  the  owner  has  allowed  any  other 
person  to  assert  rights  which  will  be  seriously  and  irremedi- 
ably damnified  by  the  reassertion  of  the  right  of  easement. 
This  language  was  applied  to  a  case  where  the  non-user  had 
continued  twenty-five  years.^ 

And  an  adverse  enjoyment  of  the  servient  estate,  though 
presumptive  evidence,  in  some  cases,  of  an  extinguishment 
of  the  easement  in  or  over  the  same,  is  always  subject  to  be 
rebutted  by  evidence.* 

2.  In  the  first  place,  if  the  easement  has  been  acquired 
by  deed,  no  length  of  time  of  mere  non-user  will  operate  to 
impair  or  defeat  the  right.  Nothing  short  of  a  use  by  the 
owner  of  the  premises  over  which  it  was  granted,  which  is 
adverse  to  the  enjoyment  of  such  easement  by  the  owner 

1  See  2  Fournel,  Traite  du  Voisinage,  406 ;  Crossley,  v.  Lightowler,  L.  K.  3 
Eq.  292,  294. 
^  Fox  V.  Hart,  11  Ohio,  416.     Sec  State  v.  Alstead,  18  N.  H.  65. 
8  Crossley  v.  Lightowler,  L.  R.  3  Eq.  294. 
*  Iloirtiiati  V.  Savage,  Ifj  Mass.  130. 


Sect.  6.]  EFFECT   OF   NON-USER   OF   EASEMENTS.  G41 

thereof,  for  the  space  of  time  long  enough  to  create  a  pre- 
scriptive right,  will  destroy  the  right  granted.^ 

Thus  where  the  owner  of  an  aqueduct  through  another's 
land  discontinued  the  use  of  it,  and  the  owner  of  the  land 
took  up  the  logs,  and  did  other  acts  inconsistent  with  a  fur- 
ther use  of  the  aqueduct,  and  this  was  continued  for  thirty- 
years,  it  was  held  that  the  right  was,  thereby,  lost,  although 
originally  acquired  by  express  grants,  these  acts  being  ad- 
verse to  the  right  of  easement  and  acquiesced  in  by  the 
owner  thereof.^ 

In  the  case  of  Arnold  v.  Stevens  the  easement  granted 
was  the  right  to  dig  ore  in  the  grantor's  land,  which  had 
remained  unused  for  forty  years,  but  there  had  been 
no  *  adverse  enjoyment  of  the  premises,  and  it  was   [*552] 
held  to  be  no  abandonment  of  the  right.^ 

In  Butz  V.  Ihrie  there  was  a  grant  of  land,  excepting  and 
reserving  a  right  to  raise  the  water  of  a  stream  running 
through  the  same  to  a  certain  height  by  means  of  a  dam,  to 
be  erected  in  a  certain  locality.  This  right  had  remained 
unused  for  over  thirty  years,  and  it  was  contended  by  the 
land-owner  that  the  right  had  been  abandoned  and  lost.  The 
court  held  that,  inasmuch  as  the  terms  of  the  reservation 
did  not  require  the  right  to  be  exercised  at  once,  no  mere 
lapse  of  time  during  which  it  was  not  exercised  could  be 
deemed  evidence  of  an  abandonment,  and  that  the  law  of 
limitation  did  not  apply  so  as  to  run  against  such  right, 
until  some  default,  negligence,  or  acquiescence  was  shown, 
or  might  be  fairly  presumed  in  the  owner.  "  The  time  of 
limitation  may  begin  to  run  as  soon  as  the  laches  exists,  but 
not  before."^ 

1  Banner  v.  Angier,  2  Allen,  128;  Jennison  v.  Walker,  15  Gray;  Arnold  v. 
Stevens,  24  Pick.  106,  113,  114;  White  v.  Crawford,  10  Mass.  183;  Jewett  v. 
Jewett,  16  Barb.  150;  Farrar  v.  Cooper,  34  Me.  394,  400;  Smiles  v.  Hastings, 
24  Barb.  44 ;  3  Kent,  Comm.  359 ;  Ang.  Watercourses,  §  252 ;  Nitzell  v.  Pas- 
chall,  3  Rawle,  76  ;  French  v.  Braintree  Co.,  23  Pick.  222. 

-  Jennison  v.  Walker,  1 1  Gray,  425. 

3  See  also  2  Evans,  Pothier,  Oblig.  137. 

*  Butz  V.  Ihrie,  1  Rawle,  218,  222.  See  Nitzell  v.  Paschall,  3  Rawle,  76,  82, 
41 


642      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.   1  [Ch.  V. 

The  case  of  Yeakle  v.  Nace  was  that  of  an  easement  of  a 
way,  and  confirms  the  doctrine  above  stated. 

3.  It  was  held,  that,  thougli  such  easement  miglit  be  lost 
hj  an  enjoyment  or  occupation  of  the  servient  estate,  ad- 
versely to  the  right  claimed,  it  must  be  such  as  indicates  a 
denial  of  the  right  on  the  part  of  the  owner  of  the  land. 
Otherwise,  a  mere  non-user  of  a  privilege  in  land  granted  or 
reserved,  where  there  is  nothing  in  the  grant  to  show  that  it 
was  to  be  exercised  immediately,  would  not  deprive  one  of 
his  right. 

The  facts  to  which  this  doctrine  was  applied  were  as  fol- 
low. One  granted  a  house  and  lot,  adjoining  another  lot  be- 
longing to  the  grantor,  with  a  right  of  a  passage-way  between 
the  lots  of  four  feet  in  width,  reserving  to  himself  a  right  to 
build  over  and  under  this  passage-way.  It  was  held  that  a 
mere  non-exercise  of  the  right  thus  to  build  would 
[*553]  not  *  operate  to  defeat  the  same,  though  continued 
for  ever  so  long  a  time.  But  if  the  grantee  in  such 
a  case  were  to  build  over  the  passage-way,  and  occupy  it  thus 
for  twenty-one  years,  it  would  destroy  the  right  reserved  to 
the  grantor,  by  such  adverse  occupation  and  enjoyment  by 
the  grantee.  In  that  case,  the  same  grantor  sold  eleven  lots 
to  diiferent  purchasers,  lying  by  the  side  of  each  other,  with 
a  right  of  way  across  the  rear  ends  of  each  of  these  lots, 
twenty  feet  in  width  from  one  street  to  another.  The  pur- 
chaser of  the  outside  lot,  next  to  one  of  these  streets,  en- 
closed his  lot,  including  the  twenty  feet  in  width  in  the  rear, 
and  kept  it  so  enclosed  and  cultivated  for  thirty  years  ;  and 
it  was  held  that  the  owners  of  the  other  lots,  by  acquiescing 
in  this  enclosure,  had  lost  the  right  of  way  over  and  across 
the  lot  so  enclosed. 1 

A  mere  obstruction,  however,  of  an  easement,  a  way  for 
instance,  caused  by  the  owner  of  the  servient  estate,  for  less 
than  twenty  years,  though  yielded  to  by  the  owner  of  the 
easement,  would  not  bar  the  right  any  more  than  a  mere 

1  Yeakle  v.  Nace,  2  Whart.  123. 


Sect.  6.]  EFFECT   OF   NOK-USER   OF   EASEMENTS.  643 

non-user  of  it  for  that  length  of  time.  An  obstruction  to  its 
use  cannot  be  said  to  be  an  adverse  possession  of  an  ease, 
ment,  since  an  easement  is  not  capable  of  actual  possession 
apart  from  its  enjoyment.^ 

So  in  regard  to  the  effect  of  an  interruption  of  the  right  of 
way.  It  must  have  been  acquiesced  in  by  the  owner  of  the 
easement  to  be  affected  by  it.  "  If  the  right  be  once  estab- 
lished by  clear  and  distinct  evidence  of  enjoyment,  it  can  be 
defeated  only  by  distinct  evidence  of  interruptions  acquiesced 
in."  2 

4.  So  that  the  doctrine  stated  in  Doe.  v.  Butler  applies  to 
cases  of  incorporeal  hereditaments  in  the  case  of  a  mere  non- 
user.  "  The  rule  of  presumption  is,  iU  res  rite  acta  est,  and 
is  applied  whenever  the  possession  of  the  party  is 
*rightful,  to  invest  the  possession  with  a  legal  title.  [*554] 
Such  a  presumption  will  be  made  when  it  is  neces- 
sary to  clothe  a  rightful  possession  with  a  legal  title,  but  the 
court  must  first  sec  that  there  is  nothing  but  the  form  of  a 
conveyance  wanting.  But  this  presumption  in  favor  of  a 
grant  against  written  evidence  of  title  can  never  arise  from 
the  mere  neglect  of  the  owner  to  assert  his  right,  where 
there  has  been  no  adverse  title  or  enjoyment  by  those  in 
whose  favor  the  grant  is  to  be  presumed,  for  the  obvious 
reason  that  the  presumption  of  the  person  showing  title, 
which  arises  from  the  delay  in  asserting  his  title,  is  equally 
balanced  by  the  like  presumption  arising  from  the  same 
delay  on  the  part  of  the  supposed  grantee."^ 

5.  In  respect  to  the  effect  to  be  given  to  a  mere  non-user 
of  an  easement  which  has  been  acquired  by  adverse  user  or 
prescription,  although  the  language  of  some  of  the  cases 
would  imply  that  if  continued  for  twenty  years  it  would  be, 
of  itself,  an  abandonment,  it  is  believed  that  such  non-user 
is  in  no  case  anything  more  than  evidence  of  an  intent  to 

1  Bowen  v.  Team,  6  Eich.  298,  305 ;  2  Smith,  Lead.  Cas.,  5th  Am.  ed.  211. 

2  Han-ie  v.  Eogers,  3  Bligh,  n.  s.  440,  447. 

3  Doe  V.  Butler,  3  Wend.  149,  153. 


G44  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.  [Ch.  V. 

abandon  the  right ;  that  it  never  applies  when  the  period  of 
such  non-user  is  less  than  the  period  of  limitation,  and  is 
open  to  explanation  and  to  be  controlled  by  evidence  that 
the  owner  of  the  easement  did  not  intend  to  abandon  it  while 
omitting  to  use  it.^ 

A  case  is  mentioned  by  Mr.  Evans,  in  his  edition  of  Pothier 
on  Obligations,  where  the  court  held  that  a  cesser  to  use  a 
watercourse  was  an  extinguishment  of  such  right,  although 
no  act  had  in  the  mean  time  been  done  by  the  owners  of  the 
adjacent  land  adverse  to  the  right.  But  the  editor  contends 
that  such  inference  ought  not  to  have  been  drawn,  because, 
among  other  reasons,  no  inconsistent  or  adverse  enjoyment 
had  been  acquired  in  the  mean  time.^ 

6.  So  it  is  laid  down  in  Hillary  v.  Walker,  by 
[*555]  Erskine  *Ch. ;  "  The  presumption  in  courts  of  law 
from  length  of  time  stands  upon  a  clear  principle. 
It  resolves  itself  int«  this,  that  a  man  will  naturally  enjoy 
what  belongs  to  him.  As  to  incorporeal  hereditaments,  1st, 
rights  of  way  not  enjoyed  for  a  number  of  years,  though  a 
convenience,  if  not  a  necessity  for  the  enjoyment,  has  existed, 
the  court  directs  the  jury  to  presume  either  that  it  never  did 
exist,  or  that  it  was  surrendered,  upon  this  plain  reason,  the 
absence  of  any  cause  why  a  man  possessed  of  a  right  that  is 
convenient  or  necessary  for  him  should  in  no  instance  have 
enjoyed  it.  So  as  to  the  use  of  water  and  light,  and  when- 
ever a  party  has  been  long  out  of  possession  of  an  incorporeal 
hereditament,  the  question  has  always  been  determined  in 
that  manner."  ^ 

The  language  of  Abbot,  C.  J.,  in  Doe  v.  Hilder,  on  this 
subject,  is  this  :  "  The  long  enjoyment  of  a  right  of  way  by 
A  to  his  house  or  close  over  the  land  of  B,  which  is  a  preju- 
dice to  the  land,  may  most  reasonably  be  accounted  for  by 
supposing  a  grant  of  such  right  by  the  owner  of  the  land. 

1  Pardessus,  Traite  des  Servitudes,  458  ;  Crossley  v.  Lightowler,  L.  R.  3  Eq. 
292. 

2  Prescott  V.  Phillips,  2  Evans,  Pothier,  Oblig.  136. 
8  Hillary  v.  Walker,  12  Ves.  239,  265. 


Sect  6.]  EFFECT   OF  NON-USER   OF  EASEMENTS.  645 

And  if  such  right  appear  to  have  existed  in  ancient  times,  a 
long  forbearance  to  exercise  it,  which  must  be  inconvenient 
and  prejudicial  to  the  owner  of  the  house  or  close,  may  most 
reasonably  be  accounted  for  by  supposing  a  release  of  the 
right.  In  the  first  of  these  cases,  therefore,  a  grant,  in  the 
latter  a  release,  of  the  right  is  presumed."  ^ 

This  seems  to  put  it  on  the  true  ground,  as  a  matter  of 
evidence,  and  not  a  conclusive  presumption.^ 

7.  Thus  it  was  held  in  Ward  v.  Ward,  that  "  the  pre- 
sumption of  abandonment  cannot  be  made  from  the  mere 
fact  of  non-user.  There  must  be  other  circumstances  in  the 
case  to  raise  that  presumption.  The  right  is  acquired  by 
adverse  enjoyment.  The  non-user,  therefore,  must  be  the 
consequence  of  something  which  is  adverse  to  the 
user."  *And  in  that  case  the  presumption  was  [*556] 
effectually  met  by  showing  that  the  owner  of  the 

close,  for  which  the  right  of  way  was  claimed,  had  had  a 
more  convenient  and  easy  access  to  it  in  some  other  way 
during  the  time  of  the  cesser  to  us6  the  way.^ 

8.  The  language  of  the  court  in  Corning  v.  Gould*  upon 
the  subject  is  this :  "  Abandonment  is  a  simple  non-user  of 
an  easement,  and  in  order  to  make  out  an  effectual  answer 
to  the  claim  upon  that  ground,  I  find  it  perfectly  well  settled 
that  the  enjoyment,  nay,  all  acts  of  enjoyment,  must  have 
totally  ceased  for  the  same  length  of  time  that  was  necessary 
to  create  the  original  presumption."  And  the  cases  cited 
below  not  only  sustain  this  position,  but  that  non-user  for 
a  longer  period  of  time  than  necessary  to  acquire  a  right  is 
only  evidence  of  an  abandonment,  where  the  right  has  been 
gained  by  user.  There  must  be  an  adverse  enjoyment  by 
some  party  adversely  interested  for  twenty  years,  to  give  a 
non-user  the-  effect  of  evidence.      Such  non-user  must  be 

1  Doe  V.  Hilder,  2  Barnew.  &  Aid.  782,  791. 

2  See  Eldridge  v.  Knott,  Cowp.  214. 
8  Ward  V.  Ward,  7  Exch.  838. 

*  Corning  v.  Gould,  16  Wend.  531,  535. 


646      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  V. 

accompanied  by  acts  or  declarations  indicating  an  intent  to 
abandon  the  right,  and  the  non-user  must  have  continued 
for  twenty  years,  or  other  persons  have  been  induced,  by 
such  acts  or  declarations  of  abandonment,  to  expend  money 
upon  the  premises  over  which  the  easement  once  existed.^ 

9,  In  Hatch  v.  D wight,  the  easement  was  the  use  of 
water  by  a  mill,  which  was   obstructed   by  the  owner  of 

a  lower  mill.  The  court  say  :  "  If  a  site  once  occu- 
[*557]   pied  *had  been  abandoned  by  the  owner,  evidently 

with  an  intent  to  leave  it  unoccupied,  it  would  be  un- 
reasonable that  others,  owning  above  or  below,  should  be  pre- 
vented from  making  a  profitable  use  of  their  sites  from  fear 
of  being  exposed  to  an  action  for  damages  by  their  neighbor. 
Questions  of  this  kind,  however,  are  proper  for  the  consid- 
eration of  a  jury." 

And  it  is  said  by  Coke  :  "  The  title  being  once  gained  by 
prescription  or  custom,  cannot  be  lost  by  interruption  of  pos- 
session for  ten  or  twenty  years,  but  by  interruption  of  the 
right."  2 

10.  In  Williams  v.  Nelson,  mill-owners  had  acquired  a 
prescriptive  right  to  flow  certain  lands  of  another  without 
payment  of  damages  therefor.  They  took  down  their  mill 
and  removed  it,  carrying  away  all  the  valuable  parts  thereof 
except  the  wheel,  which  they  did  not  afterwards  use  in  re- 
building the  mill.  Some  of  the  owners  of  the  mill  had 
moreover  declared,  and  one  of  them  had  done  this  in  the 
presence  of  the  owner  of  the  land,  that  the  mill  would  not 
again  be  put  in  operation.     The  premises  continued  in  this 

1  Hatch  V.  Dwight,  17  Mass.  289  ;  Emerson  v.  Wiley,  10  Pick.  310;  Williams 
V.  Nelson,  23  Tick.  141,  147;  French  v.  Braintree  Mg.  Co.,  23  Pick.  216; 
White  V.  Crawford,  10  Mass.  183;  Arnold  v.  Stevens,  24  Pick.  106;  Regina  v. 
Chorley,  12  Q.  B.  515;  Jewett  v.  Jewett,  16  Barb.  150;  Wright  v.  Freeman,  5 
Harr.  &  J.  467,  476;  Kurd  v.  Curtis,  7  Mete.  94,  115;  Pillsbury  v.  Moore,  44 
Me.  154;  Townsend  v.  M'Donald,  2  Kern,  381;  Dyer  v.  Depui,  5  Whart. 
584 ;  Perkins  v.  Dunham,  3  Strobh.  224  ;  Farrar  v.  Cooper,  34  Me.  394,  400 ; 
Nitzcll  V.  Paschall,  3  Rawle,  76,  82  ;  Hall  v.  Swift,  6  Scott,  167  ;  Miller  v.  Gar- 
lock,  8  Barb.  153;  Crossley  v.  Lightowler,  L.  R.  3  Eq.  293. 

2  Co.  Litt.  114b. 


Sect.  6.]  EFFECT   OF  NON-USER   OF  EASEMENTS.  647 

position  nine  years,  and  the  owner  of  the  land  had  in  the 
mean  time  cultivated  and  improved  his  meadow,  cutting  the 
brush  thereon,  and  turning  some  parts  into  English  grass. 
But  the  court  held  it  was  not  an  abandonment,  and  that 
they  weM  justified  in  resuming  the  occupation  of  the  mill, 
and  overflowing  the  land,  without  thereby  being  liable  to 
damages  for  such  flowing.^ 

11.  But  it  would  seem,  that  if  the  right  of  the  mill-owners 
to  flow  the  land  had  been  acquired  under  the  mill  acts 
of  Massachusetts  by  paying  annual  damages  therefor,  and 
they  had  removed  the  mill,  and  given  notice  to  the  land- 
owner of  their  intention  not  to  flow  the  land  any 
*longer,  it  might  operate  to  extinguish  the  privilege  [*558] 
and  remit  the  land-owner  to  his  original  rights.^ 

12.  And  the  case  of  Farrar  v.  ,Cooper  affirms  the  doctrine 
above  stated,  that,  if  the  owner  of  an  upper  mill-privilege 
abandon  the  use  of  it,  he  may  lose  the  same,  if  he  so  acts  to- 
wards the  owner  of  a  lower  privilege,  proposing  to  occupy 
the  same,  as  to  give  him  reasonable  ground  to  suppose  the 
privilege  had  been  abandoned,  and  he  proceeds  to  occupy  the 
lower  one  accordingly.  Thus  where  the  owner  of  an  upper 
privilege  ceased  to  use  it,  and  joined  with  other  owners,  of 
which  he  was  one,  in  occupying  a  lower  privilege,  it  was  held 
to  be  such  an  abandonment  that  he  could  not  afterwards  re- 
sume the  occupation  of  the  first  to  the  injury  of  the  second.^ 

13.  The  case  of  Shields  v.  Arndt  is  referred  to  in  this  con- 
nection, as  presenting  some  of  the  foregoing  propositions  in  a 
somewhat  peculiar  light,  but  illustrating  how,  though  a  mere 
non-user  of  an  easement  may  not  operate  as  the  loss  of  the 
same,  yet  if  it  results  from  an  adverse  enjoyment  of  the  laud- 
owner  over  which  it  is  claimed,  and  this  is  continued  for 
twenty  years,  the  effect  is  to  extinguish  it,  as  if  it  never  had 

1  See  Hurd  v.  Curtis,  supra;  Dyer  v.  Depui,  5  Wliart.  584,  597  ;  Mowry  v. 
Sheldon,  2  R.  I.  369,  378. 

■2  French  v.  Bniintree  Mg.  Co.,  supra ;  Liggins  v.  Inge,  7  Biug.  682.  See 
Baird  v.  Hunter,  12  Pick.  556 ;  Hunt  v.  Whitney,  4  Mete.  603. 

3  Farrar  i;.  Cooper,  34  Me.  394,  400  ;  Mowry  v.  Sheldon,  2  R.  I.  369. 


648  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Ch.  V, 

existed.  Thus  where  one  owning  land  upon  a  stream,  below 
that  of  another,  suffered  the  upper  owner  to  divert  the  en- 
tire water  of  the  stream  from  his  land,  so  that  for  twenty 
years  none  ran  to  the  land  of  the  lower  owner,  and  then  the 
upper  owner  turned  the  water  so  that  it  ran  again  upon  the 
lower  owner's  land,  and  continued  to  do  so  for  a  time  less 
than  twenty  years,  it  was  held  that  the  upper  owner  might 
again  divert  it  upon  his  own  land,  and  that  the  lower  owner 
would  be  without  remedy  for  such  diversion.^ 

14.  In  the  case  of  Mowry  v.  Sheldon,  above  cited, 
[*559]  the  *language  of  the  court  bears  upon  the  inference 
that  may  be  drawn  from  a  mere  discontinuance  of 
the  use  of  a  mill-privilege,  and  how  far  that  depends  upon 
the  intent  with  which  it  is  done,  namely :  "  It  is  said,  that, 
leaving  the  dam  not  only  unoccupied  for  such  a  length  of 
time  (nine  years),  but  so  injured  as  not  to  pond  the  water, 
and  taking  the  gate  out  of  the  bulkhead,  were  calculated  to 
mislead  the  owner  below,  who  might  go  on  and  erect  his 
dam  in  the  belief  that  the  privilege  was  abandoned.  We 
think,  in  such  a  case,  it  is  the  duty  of  the  owner  below,  be- 
fore he  attempts  to  flow  out  the  privilege  above,  to  inquire 
of  the  owner  thereof.  If  the  owner  of  the  upper  privilege 
acts  in  good  faith  with  the  actual  intent  to  repair  the  dam, 
and  occupy  it  or  sell  to  some  one  who  will,  we  do  not  think 
he  ought  to  lose  his  privilege."  ^ 

1  Shields  v.  Arndt,  3  Green,  Ch.  234. 
"  Mowry  v.  Sheldon,  2  R.  I.  369,  378. 


Sect.  7.]      EFFECT  OF  EXECUTED  LICENSE  UPON  EASEMENT.  649 

SECTION    VII. 

EFFECT   OF  AN  EXECUTED   LICENSE   UPON  AN  EASEMENT. 

1.  Effect  of  acts  done  on  dominant  and  servient  estates. 

2.  Acts  on  dominant  estate  whicli  destroy  easements. 

3.  Acts  done  by  license  on  servient  estate. 

4.  If  act  done  destroj's  easement,  it  is  irrevocable. 

5.  Liggins  v.  Inge.     Case  of  act  done  on  servient  estate. 

6.  Morse  v.  Copeland.    Easement  destroyed  by  an  executed  license. 

7.  Dyer  v.  Sanford.    Act  on  servient  estate  destroying  easement. 

1.  In  some  of  the  cases  which  have  been  referred  to,  the 
rulings  of  the  courts  might  have  been  sustained  upon  what 
has  now  become  well-settled  law,  that,  if  the  owner  of  the 
dominant  estate  do  acts  thereon  which  permanently  prevent 
his  enjoying  an  easement,  the  same  is  extinguished:  or,  if 
he  authorize  the  owner  of  the  servient  estate  to  do  upon  the 
same  that  which  prevents  the  dominant  estate  from 

any  *longer  enjoying  the  easement,  the  effect  will  be   [*560] 
to  extinguish  it. 

2.  In  respect  to  the  first  part  of  the  proposition,  it  has 
been  heretofore  illustrated  by  referring  to  the  case  of  light 
and  air,  where  the  owner  of  a  dominant  estate  had  erected 
a  permanent  blank  wall  in  place  of  the  one  through  which 
the  light  and  air  had  been  enjoyed ;  and  it  is  only  necessary 
to  repeat  the  doctrine  in  this  connection. ^ 

3.  But  the  other  part  of  the  proposition  requires  a  more 
extended  explanation,  in  order  to  distinguish  between  the 
cases  of  a  license  to  do  acts  on  the  land  of  the  licenser  and 
similar  acts  on  that  of  the  licensee.  If  one  licenses  another 
to  do  an  act  upon  the  licenser's  land,  he  may,  at  common 
law,  revoke  it,  so  far  as  it  remains  unexecuted,  at  his  pleas- 
ure, with  very  rare,  if  any,  exceptions.^ 

1  Dyer  v.  Sanford,  9  Mete.  395 ;  Moore  v.  Eawson,  3  Barnew.  &  C.  332 ; 
Lavillebeuvre  v.  Cosgrove,  13  La.  Ann.  323  ;  La.  Civ.  Code,  ^  779. 
-  Hewlius  V.  Shippam,  5  Barnew.  &  C.  221. 


650  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.  [Cir,  V. 

4.  And  consequently,  if  the  act  so  licensed  to  be  done 
aflfects  the  enjoyment  of  the  land,  or  any  easement  con- 
nected therewith,  when  the  same  is  revoked  the  right  to 
the  easement  revives  with  full  vigor.  But  if  the  act  be  to 
be  done  on  the  licensee's  land,  and  the  effect  thereof  is 
to  impair  or  destroy  an  easement  belonging  to  land  of  the 
licenser,  the  latter  cannot  himself  restore  what  has  been 
changed  on  the  other's  land,  nor  can  his  revocation  of  the 
license  affect  what  has  already  actually  been  accomplished  ; 
and  it  would  be  sufficient  that  the  license  was  by  parol,  and 
not  in  writing. 

This  position  will  be  found  illustrated  by  the  cases  which 
are  cited  below. ^ 
[*561]  *5.  In  Liggins  v.  Inge,  the  plaintiff's  ancestor, 
a  mill-owner,  by  parol,  licensed  or  authorized  the 
defendant  to  lower  the  bank  of  the  stream  within  his  own 
land,  and  to  raise  a  weir  in  the  stream  there,  whereby  the 
water  of  the  stream  was  diverted.  This  the  defendant  did 
at  his  own  expense,  and,  after  the  same  had  continued  in 
that  state  for  five  years,  the  mill-owner  called  on  the  defend- 
ant to  restore  the  bank  to  its  original  state,  which  he  refused 
to  do.  The  court  held,  that,  when  the  mill-owner  author- 
ized this  diversion  to  be  made,  he  thereby  signified  his  relin- 
quishment of  a  right  to  so  much  of  the  water  ;  and  after  he 
had  done  this  by  words  or  acts,  and  suffered  other  persons 
to  act  upon  the  faith  of  such  relinquishment,  and  to  incur 
expense  in  doing  the  very  Set  to  which  his  consent  was 
given,  it  was  too  late  to  retract  such  consent,  or  to  throw  on 
those  other  persons  the  burden  of  restoring  matters  to  their 
former  state  and  condition.     "  There  is  nothing  unreasonable 

1  Liggins  V.  Inge,  7  Bing.  682  ;  Winter  v.  Brockwell,  8  East,  308 ;  Morse  v. 
Copeland,  2  Gray,  302;  Elliott  v.  Rliett,  5  Rich.  405,  418,419;  Dyery.  San- 
ford,  9  Mete.  39.5.  See  also  Addison  v.  Hack,  2  Gill,  221  ;  3  Toullier,  Droit 
Civil  Franrais,  506  ;  3  Burge,  Col.  &  F.  Law,  445  ;  ante,  p.  394. 

Lalaurc  states  the  law  thus :  "  Si  jc  vous  devois  un  droit  de  chenain  a  travers 
mon  champ,  ct  que  vous  me  permissicz  de  hutir  sur  le  cliemin  ;  ou  d'enclorre  le 
chamj),  alors  vous  perdriez  la  servitude."  Traite  des  Servitudes,  80.  See  D. 
8,  6,  8. 


Sect.  7.]      EFFECT  OF  EXECUTED  LICENSE  UPON  EASEMENT.  G51 

ill  holding  that  a  right  which  is  gained  by  occupancy  should 
be  lost  by  aljandonment."  The  court  put  the  following  case 
by  way  of  illustration  :  "  Suppose  A  authorizes  B,  by  express 
license,  to  build  a  house  on  B's  own  land  close  adjoining  to 
some  of  the  windows  of  A's  house,  so  as  to  intercept  part  of 
the  light,  could  he  afterwards  compel  B  to  pull  down  the 
house  again,  simply  by  giving  notice  that  he  countermanded 
the  license  ?  " 

The  act  authorized  to  be  done  in  Winter  v.  Brockwell  was 
for  the  owner  of  the  servient  estate  to  place  a  skylight  there- 
on, adjoining  the  dominant  estate,  the  effect  of  which  was  to 
prevent  the  light  and  air  coming  to  the  latter,  as  it  had 
previously  done  ;  and  it  was  held  not  to  be  revocable,  after 
it  had  been  executed. 

6.  The  case  of  Morse  v.  Copeland  was  in  many  respects 
like  that  of  Liggins  v.  Inge  ;  and  a  similar  doctrine  was 
sustained  in  it.  The  plaintiff  owned  a  mill  and  a  right  to 
flow  the  defendant's  land.  He  gave  the  defendant  oral 
permission  to  erect  a  dam  on  his  own  land,  which 
excluded  *the  water  of  the  plaintiff's  pond  from  a  [*562] 
portion  of  the  land  previously  flowed,  which  dam  he 
erected.  The  plaintiff  also  gave  the  defendant  license  to  cut 
a  trench  from  the  part  of  the  land  thus  cut  off  by  the  dam, 
across  the  plaintiff's  land,  and  thereby  to  drain  the  water 
from  that  part  of  the  defendant's  land,  which  trench  the 
defendant  also  constructed.  A  few  years  after  this,  the 
plaintiff  revoked  these  licenses,  and  insisted  upon  having 
the  dam  removed  and  the  ditch  filled  up.  But  the  court 
held,  that,  as  to  the  executed  license  under  which  the  de- 
fendant had  erected  a  dam  on  his  own  land,  it  was  not 
revocable ;  but  as  to  that  which  related  to  a  ditch  across  the 
plaintiff's  land,  it  might  be  revoked,  and,  in  an  action  for 
keeping  up  the  dam  and  ditch,  judgment  was  rendered  in 
accordance  with  this  ruling. 

7.  The  same  doctrine  is  again  repeated  in  Dyer  v.  Sanford, 
which  related  to  an  obstruction  of  an  easement  of  light  and 


652  THE  LAW   OF  EASEMENTS  AND   SERVITUDES.  [Ch.  V. 

air,  by  an  erection  by  the  owner  of  the  servient  estate  upon 
his  own  land,  by  the  license  and  permission  of  the  owner  of 
the  dominant  estate.  "  It  results  from  the  consideration 
that  a  license  when  executed  is  not  revocable,  and  if  the 
obstruction  be  permanent  in  its  nature,  it  does,  de  facto, 
terminate  the  enjoyment  of  the  easement.  But  the  license 
is  for  the  specific  act  only,  and  if,  when  executed,  it  is  of 
such  a  nature  as,  de  facto,  to  destroy  the  easement,  but  is 
only  temporary  in  its  nature,  or  limited  in  its  terms,  then, 
as  the  easement  is  not  released  when  the  obstruction,  erected 
in  pursuance  of  such  specific  license,  is  removed,  the  owner 
of  the  servient  tenement  cannot  erect  another  obstruction 
of  the  same  or  of  a  different  kind  without  a  new  license." 
But  this  statement  of  the  law  is  accompanied  by  the  re- 
mark :  "  We  think  there  is  a  distinction  between  an  exe- 
cuted license  to  impede  or  obstruct  an  easement  of  this 
description,  and  an  abandonment  of  the  easement."  So 
that  it  seems  that,  whether  the  execution  of  the  license  is  a 

suspension  merely,  or  a  practical  destruction  of  the 
[*563]   right  of  *easement,  depends  upon  the  nature  and 

effect  of  the  act  licensed  to  be  done.  And  further- 
more, such  license,  or  the  act  done  under  it,  can  extend  no 
further  than  the  right  and  interest  of  the  licenser  in  the 
estate,  since  the  tenant  of  a  term  cannot  bind  the  reversioner 
by  acts  done  by  him  while  in  possession  of  the  premises  as  a 
termor.  Thus  it  is  said  in  the  case  cited  :  "  The  license  in 
question,  and  the  acts  done  under  it,  could  not  operate  as  a 
release,  because  not  in  writing,  nor  as  an  abandonment, 
because  E.  T.  (the  licenser)  was  not  the  owner  of  the  in- 
heritance, and  had  at  most  a  right  of  dower  in  the  premises, 
and  the  occupation  as  guardian  of  her  children,  or  other- 
wise." ^ 

So  if  the  act  be  to  be  done  on  a  third  person's  estate  by 
the  licensee,  and  the  license  be  executed,  it  cannot  be  revoked. 
Thus,  one  owning  an  aqueduct  which  extended  across  the 

1  Dyer  V.  Sanford,  9  Mctc.  395. 


Sect.  7.]      EFFECT  OF  EXECUTED  LICENSE  UPON  EASEMENT.  653 

land  of  a  neighboring  proprietor  to  his  own,  granted  to  a 
third  person  a  right  to  draw  water  from  it  to  be  taken  at  a 
point  within  the  grantor's  land.  He  then  gave  the  grantee 
of  this  right  a  license,  by  parol,  to  draw  the  water  from  the 
aqueduct  at  a  point  in  the  land  of  the  adjacent  owner,  before 
it  had  reached  the  land  of  the  grantor.  The  licensee  having 
done  as  he  was  licensed  to  do,  it  was  held  that  the  licenser 
could  not  afterwards  revoke  the  license.^ 

1  Curtis  V.  Noonan,  10  Allen,  406. 


[*564]  ^CHAPTER    VI. 

REPAIRS   OF  EASEMENTS  AND  REMEDY  FOR  INJURIES. 

Sect.  1.  Repairs  of  Easements. 

Sect.  2.  Remedy  at  Law  for  Injuries  to  Easements. 

Sect.  3.  Remedy  in  Equity  for  Injuries  to  Easements. 

Sect.  4.  Remedy  by  Abatement  for  Injuries  to  Easements. 

SECTION    I. 

REPAIRS   OF   EASEMENTS. 

1.  General  duty  of  repair  in  dominant  tenement. 

2.  One  having  riglit  of  a  well  bound  to  repair  it. 

3.  One  bound  to  repair  may  do  all  that  is  necessary. 

4.  Liford's  case.     One  repairing  may  enter  on  servient  land. 

5.  What  may  be  done  in  way  of  repairs. 

6.  When  the  dominant  must  repair  servient  estate. 

7.  As  to  repairing  party  walls. 

8.  Easements  revive  upon  the  restoration  of  means  of  enjoyment. 

1.  As  a  general  proposition,  whoever  has  an  easement, 
like  a  right  of  way,  for  instance,  in  or  over  another's  land, 
is  the  one  to  keep  it  in  repair.  He  may  not  call  upon  the 
land-owner  to  make  such  repairs,  unless  bound  to  do  so  by 
covenant  or  prescription.  And  if  a  private  way  becomes 
founderous  or  impassable,  the  owner  of  the  way  has  no  right, 
in  consequence  thereof,  to  go  upon  other  parts  of  the  land 
over  wliich  it  lies,  unless  the  owner  of  the  land  is  bound  to 
make  the  repairs.  Having  such  easement  carries  with  it 
the  right  to  make  all  necessary  repairs  at  all  reasonable 
times.^ 

1  Com.  Dig.,  Chimin.  D.  6 ;  Pomfrct  v.  Ricroft,  1  Saund.  322 ;  Duncan  v. 
Louch,  6  Q.  B.  904 ;  Taylor  v.  Whitehead,  Dougl.  745,  748  ;  Garrard  v.  Cooke, 
2  Bos.  &  P.  N.  K.  109  ;  Prcscott  v.  White,  21  Pick.  341  ;  Peter  v.  Daniel,  5  C. 


Sect.  1.]  REPAIRS   OF   EASEMENTS.  655 

But  if  the  way  be  over  or  across  a  watercourse,  he  has  no 
right  so  to  repair  or  maintain  it  as  to  obstruct  the  flow  of  the 
stream,  and  if  he  does,  to  the  injury  of  the  land  above,  he 
would  be  liable  in  damages.^ 

*2.  Where  one  granted  a  lot  of  land  having  a  [*565] 
well  upon  it,  and,  in  his  deed,  reserved  to  himself, 
and  to  his  heirs  and  assigns  who  might  occupy  a  certain 
dwelling-house,  "  the  right  to  take  water  freely  from  the 
well,  <fec.,  or  from  any  other  well  which  may  be  sunk  there," 
it  was  held  that  the  grantee  was  not  bound  to  keep  the  well 
in  repair,  or  to  preserve  its  existence.^ 

But  if  the  owner  of  the  servient  estate  covenant  to  keep 
the  easement  in  repair,  he  is  not  exonerated  from  the  burden 
by  the  dominant  one  having  actually  repaired  it  himself,  in 
one  case  for  forty  years.^ 

3.  The  grant  of  a  right  to  build  a  dam  and  flow  the 
grantor's  land  carries  the  right  to  erect  and  repair  the  dam 
and  cleanse  the  pond,  as  occasion  may  require.^ 

The  grantee  of  a  way  is  the  party  who  is  to  make  as  well 
as  repair  it.^ 

So  where  one  granted  to  another  the  right  to  enjoy  a 
certain  strip  of  land,  to  be  used  as  a  way  in  connection  with 
certain  houses  from  a  public  highway,  it  was  held  to  pass  a 
right  to  lay  down  a  flagstone,  within  this  space,  in  front  of 
one  of  those  houses,  for  the  accommodation  thereof,  it  being 
a  suitable  mode  of  repairing  the  same,  so  that  it  should  not 
be  wet  and  dirty.^ 

B.  568  ;  Prescott  v.  "Williams,  5  Mete.  429;  Doane  v.  Badger,  12  Mass.  65,  70; 
Jones  u.  Percival,  5  Pick.  485;  Miller  v.  Bristol,  12  Pick.  550;  2  Fournel, 
Traite  du  Voisinage,  358;  Liford's  case,  11  Rep.  46,  52;  BuUard  ?;.  Harrison, 
4  Maule  &  S.  387,  393  ;  Rider  v.  Smith,  3  T.  R.  76G ;  Com.  Dig.,  Chimin,  D. 
6  ;  Ayl.  Pand.  307  ;  "Williams  v.  Safford,  7  Barb.  309  ;  Robins  v.  Jones,  C.  B. 
26  Law  Rep.  291 ;  Gillis  v.  Nelson,  16  Louis.  An.  279. 

1  Haynes  v.  Bm-lington,  38  "Verm.  360. 

2  Ballard  v.  Butler,  30  Me.  94. 

3  Holmes  v.  Buckley,  1  Eq.  Cas.  Abr.  27. 
*  Frailey  v.  "Waters,  7  Penn.  St.  221. 

5  Osborn  v.  "Wise,  7  Carr.  &P.  761. 

6  Gerrard  v.  Cooke,  2  Bos.  &  P.  n.  e.  109. 


656  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  VI. 

But  where  one  had  acquired  a  prescriptive  right  of  way, 
by  long-continued  use  and  enjoyment,  it  was  held  that  he 

did  not  thereby  acquire  a  right  to  dig  ditches  in  the 
[*566]   servient  *estate  for  the  purpose  of  repairing  the  way, 

unless  he  had  gained  this  right  by  use  and  enjoy- 
ment, as  he  had  that  of  the  way  itself.^ 

M.  Fournel  states  the  French  law  upon  the  subject  of  the 
right  to  do  acts  upon  the  freehold  of  the  servient  tenement, 
by  the  way  of  repairing  a  way  or  an  aqueduct,  as  being 
much  more  restricted  than  what  might  be  done  in  the  origi- 
nal construction  of  such  way.  He  quotes  the  civil  law : 
Aliud  est  enim  reficere,  longe  aliudfacereP' 

4.  In  Liford's  case,  it  is  said  :  "  The  law  giveth  power  to 
him  who  ought  to  repair  a  bridge  to  enter  into  the  land,  and 
to  him  who  hath  a  conduit  within  the  land  of  another  to 
enter  the  land  and  mend  it  when  cause  requireth,  as  it  was 
resolved  in  9  Ed.  IV.  35,"  where  it  was  held  that  the  right 
to  scour  and  amend  a  trench  was  incident  to  a  grant  of  a 
right  to  dig  it  in  another's  land  for  the  purpose  of  drawing 
water  through  the  same  ;  ^  and  the  same  doctrine  is  sustained 
in  Peter  v.  Daniel.* 

5.  The  law  upon  the  subject  is  thus  stated  by  Mr.  Burge :  ^ 
"  With  the  exception  of  the  servitude  onus  ferendi,  where 
the  owner  of  the  servient  tenement  is  bound  to  repair  that 
which  is  used  for  the  support,  the  owner  of  the  dominant 
tenement  is  bound  to  keep  in  repair  the  way  or  other  means 
by  which  he  uses  the  servitude.  Thus  the  person  entitled  to 
a  servitude  of  drain  must  at  his  own  expense  cleanse  and 
repair  it.  So  the  dominant  of  a  road  must  keep  it  in  order 
for  his  own  use,  and  any  stipulation  to  the  contrary  imposes 

1  Capers  r.  M'Kee,  1  Strobh.  164. 

2  2  Fournel,  Traite  du  Voisinage,  362  ;  5  Duranton,  Cours  de  Droit  Fran- 
9ais,  626;  D.  43,  19,  3,  15. 

3  Liford's  case,  1 1  Rep.  46,  52. 

«  Peter  v.  Daniel,  5  C.  B.  568 ;  3  Toullier,  Droit  Civil  Fran9ais,  508 ;  D.  8, 
4,  11,  1. 
6  3  Burge,  Col.  &  F.  Law,  443. 


Sect.  1.]  REPAIRS   OF   EASEMENTS.  657 

a  personal  obligation  superadded  to  the  servitude.  The 
owner  of  the  dominant  has  the  right,  as  a-  part  of 
the  *  servitude,  to  perform  at  his  own  expense  all  [*567] 
such  works  as  are  necessary  for  preserving  and  mak- 
ing use  of  the  servitude,  and  so  he  is  entitled  to  have  access 
to  make  the  necessary  repairs.  The  owner  of  the  servient 
estate  can  do  nothing  to  diminish  the  use  or  convenience  of 
the  servitude  to  the  owner  of  the  dominant.  Nor  can  the 
owner  of  the  dominant  enlarge  his  use  so  as  to  increase  the 
burden  on  the  servient,  unless,  in  so  far  as  such  change 
of  use  may  be  necessary  in  order  to  make  the  servitude  ef- 
fectual." 

Though  for  the  doctrine  above  stated  Mr.  Burge  has 
chiefly  cited  authorities  from  the  civil  and  Scotch  law,  it  is 
apprehended  that  the  rules  here  laid  down  are  equally 
established  as  a  part  of  the  common  law.  One  or  two  cita- 
tions may  be  added  to  those  above  given,  sustaining  the 
views  expressed  by  him.  Thus  Duranton,  after  saying  that 
the  owner  of  the  dominant  estate  may  do  whatever  is  neces- 
sary to  his  enjoying  a  servitude  upon  another's  tenement, 
adds,  that  this  must  be  at  his  own  charge,  and  not  at  that 
of  the  owner  of  the  servient  estate,  since  it  is  of  the  very 
nature  of  a  servitude  that  he  who  has  the  right  to  it  is 
the  one  to  act,  while  the  other  is  only  to  suffer  and  not 
to  do.i 

And,  by  the  Scotch  law,  the  servitude  oyius  ferendi  does 
not,  as  it  did  by  the  civil  law,  impose  upon  the  servient  es- 
tate the  burden  of  maintaining  the  wall  at  his  charge.^ 

6.  Where  the  easement  is  of  a  character  that  a  want  of 
repair  injuriously  affects  the  owner  of  the  servient  land,  it 
becomes  not  only  the  right  but  the  duty  of  the  owner  of  the 
easement  to  cause  all  necessary  repairs  to  be  made.  As,  for 
instance,  if  one  has  an  aqueduct  by  pipes  or  a  gutter  across 

1  5  Duranton,  Cours  de  Droit  Fran9ais,  619,  620;  3  Toullier,  Droit  Civil 
Fran^ais,  501  ;  Ayl.  Tand.  307,  309;  Gillis  v.  Nelson,  16  La.  An.  275. 

2  3  Burge,  Col.  &  F.  Law,  404. 

42 


658  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cu.  VI. 

the  land  of  another,  he  is  bound  to  keep  these  in  repair,  so 
that  the  owner  of  the  land  shall  not  be  damaged  by  the  want 

of  such  repair.^ 
[*568]       *7.  For  the  law  relative  to  the  repairs  of  party- 
walls  reference  may  be  had  to  a  former  part  of  the 
work  in  which  the  subject  is  treated  of.^ 

8.  It  may  be  observed,  as  a  well-settled  rule  of  the  civil 
law,  which  would  doubtless  be  regarded  as  a  part  of  the 
common  law,  that,  if  a  house,  a  wall,  a  water-spout,  or  any- 
thing of  that  kind  with  which  or  by  which  a  servitude  exists 
or  is  enjoyed,  is  destroyed,  and  the  same  is  afterwards,  with- 
in the  period  of  prescription,  reconstructed  or  restored,  what- 
ever may  have  been  the  servitudes  connected  therewith,  they 
are,  by  such  restoration,  revived.^ 


SECTION    II. 

REMEDY   AT   LAW  FOR  INJURIES   TO  EASEMENTS. 

1.  Action  lies  for  an  injury  to  a  right,  though  no  damage. 

2.  Owner  of  easement  not  affected  by  suit  between  others. 

3.  Distinction  in  remedy  for  injury  to  private  and  public  easement. 

4.  Action  for  injury  to  easement,  Case  and  not  Trespass. 

5.  When  actions  for  such  injury  are  local. 

6.  Any  one  in  possession  may  have  the  action. 

7.  Right  of  easement  not  triable  in  ejectment. 

8.  Right  of  easement  no  bar  to  a  real  action. 

9.  When  one  liable  for  continuinr/  a  nuisance. 

10.  Norton  v.  Volentine.     Continuing  nuisance  to  natural  easement. 

11.  When  notice  necessary  to  sustain  action  for  nuisance. 

12.  After  easement  destroyed,  ahenee  of  the  estate  not  liable. 

13.  Lessor  liable  for  nuisance  on  the  demised  estate. 

14.  Grantor  with  warrantj',  when  liable  for  nuisance. 

15.  One  who  erects  nuisance  on  a  third  person's  land  liable. 

16.  Of  justifying  under  a  right  of  easement  for  a  trespass. 

1.  Although  it  is  not  proposed  to  dwell  at  any  length 

1  Egremont  v.  Tulman,  Mood.  &  M.  404 ;  Bell  v.  Twentyman,  1  Q.  B.  766. 

2  Ante,  chap.  4,  sect.  3,  pp.  *459,  *472. 

3  TouUier,  Droit  Civil  Franfais,  522  ;  D.  8,  2,  20,  2, 


Sect.  2.]    REMEDY   AT   LAW   FOR   INJURIES   TO   EASEMENTS.  659 

upon  the  forms  of  pleading  or  rules  of  evidence  applicable  to 
an  alleged  violation  of  a  right  of  easement,  there  seems  to 
be  an  obvious  pi-opricty  in  treating  briefly  of  the 
remedy  *  which  the  law  has  provided  to  secure  to  [*569] 
one  the  enjoyment  of  such  a  right,  or  an  adequate 
redress  for  being  unlawfully  deprived  thereof.  These  reme- 
dies are  either  in  equity  or  at  common  law,  and  may  be  con- 
sidered separately. 

Though  it  is,  generally,  true  that,  in  order  to  maintain 
an  action  at  law  for  the  recovery  of  damages,  something 
amounting  to  an  actual  loss  or  injury  must  be  shown  to 
have  been  sustained  on  the  part  of  the  plaintiff,  it  is  now 
settled,  as  an  elementary  principle,  that  one  having  an  in- 
corporeal hereditament,  like  an  easement,  may  maintain  an 
action  to  vindicate  his  claim  to  the  same,  if  he  can  show  a 
violation  of  his  right  to  enjoy  it,  although  he  may  be  unable 
to  show  any  actual  damage  or  loss  occasioned  thereby.  The 
law,  in  order  to  protect  him  from  a  repetition  of  such  acts 
as  might,  in  time,  defeat  or  impair  his  right,  will  presume 
damages  to  have  resulted  therefrom,  and,  by  a  rendition  of  a 
judgment  therefor,  establish  his  right  and  protect  it  from  in- 
terruption.^ A  writer  in  the  Law  Magazine  and  Review  ex- 
amines two  or  three  leading  English  decisions  upon  the  sub- 
ject of  when  an  action  must,  and  when  it  may  be  maintained 
for  an  injury  to  a  right,  and  whether  it  must  be  brought 
when  the  act  is  done  which  causes  the  damage,  or  it  may  be 
delayed  until  the  damage  has  actually  been  caused.  This 
bears,  too,  upon  the  question  of  the  action  being  barred  by 
the  statute  of  limitations. 

The  writer  cites  Nickliii  v.  "Williams  ^  and  Bonomi  v. 
Backhouse,^  both  of  which,  it  is  said,  were  overruled  in  the 

1  Ante,  p.  *229,  and  cases  cited.  See  also  Ashby  v.  White,  2  Lord  Raym. 
938  ;  Woodman  v.  Tufts,  9  N.  H.  88  ;  Northam  v.  Hurley,  1  Ellis  &  B.  665, 
673  ;  Tillotson  v.  Smith,  32  N.  H.  90,  where  defendant  turned  a  new  stream  into 
an  old  one  ;  Smith  L.  Cas.,  5th  Am.  ed.  105  et  seq. 

2  Nicklin  v.  Williams,  10  Exch.  259. 

3  Bonomi  v.  Backhouse,  E.  B.  &  El.  622. 


660      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  VI. 

Court  of  Exchequer  Chamber,  revising  the  former  cases,' 
"whereby  it  was  established,  that  it  is  the  doing  of  damage  to 
the  owner  of  the  surface  by  excavating  for  minerals  under  it 
by  one  who  owns  them,  that  gives  the  right  of  action,  and  not 
the  excavation  that  may  do  such  damage,  if  it  has  not  yet 
actually  caused  it.  And  he  adds,  "  This  very  important 
question  is  thus  now  settled  upon  true  principles  of  justice, 
and,  we  may  add,  of  expediency.  It  is  better,  both  for  own- 
ers of  surface  land  and  owners  of  mines,  that  the  cause  of 
action  should  accrue  upon  the  happening  of  actual  damage 
rather  than  upon  an  imaginary  injury  to  a  right."  ^ 

But  it  is  still  true,  that  an  action  will  lie  for  a  violation  of 
a  righty  although  no  actual  damage  has  been  done.  The 
rule  given  in  this  respect  is,  "  whenever  an  act  injures  anoth- 
er's right,  and  would  be  evidence  in  future  in  favor  of  the 
wrong  doer,  an  action  may  be  maintained  for  an  invasion  of 
the  right,  without  proof  of  any  specific  damage."  ^ 

2.  Another  circumstance,  in  connection  with  the  vindica- 
tion of  rights  of  easements  by  actions  at  law,  which  has 
already  been  referred  to,  is  that  the  claimant  of  such  right 
would  not  be  affected  by  any  judgment  which  might  be 
rendered  in  a  real  action  brought  by  a  stranger  against  the 
owner  of  the  servient  estate,  to  recover  possession  of  the 
same.* 

8.  There  is  a  clear  and  well-sustained  distinction  between 
a  right  to  maintain  an  action  for  an  infringement  of  one's 
right  to  use  a  private,  and  that  of  using  a  public  way.  In 
the  latter,  in  order  to  maintain  a  personal  action,  the  plain- 
tiff must  show  special  damages  sustained  by  himself 
[*570]  in  *order  to  recover.  In  the  former,  he  only  need 
show  the  violation  of  a  right.^ 

1  Bonomi  v.  Backhouse,  E.  &  B.  &  El.  646. 

2  10  Law  M.  &E.  182. 

3  E.  &  B.  &  El.  p.  657  ;  Mellor  v.  Spateman,  1  Wms.  Sannd.  346  b ;  96  Eng. 
C.  L.  Rep.  659  note. 

^  Hancock  V.  Wentworth,  5  Mete.  446. 

6  Atkins  V.  Bordman,  2  Mete.  456,  469 ;  Greasly  v.  Codling,  2  Bing.  263 ; 


Sect.  2.]    REMEDY   AT   LAW   FOR   INJURIES   TO  EASEMENTS.  G61 

4.  Where  the  action  is  to  recover  consequential  damages 
for  interfering  with  the  pkiintitf 's  right  of  casement,  and 
not  for  an  act  done  upon  his  own  land,  the  form  of  the  ac- 
tion is  case,  and  trespass  will  not  lie.^ 

5.  If  it  be  for  obstructing  a  watercourse,  it  is  local  in  its 
nature.2  But  where  the  act  complained  of  is  done  in  one 
county,  but  the  injurious  consequences  thereof  are  felt  in 
another,  as,  for  instance,  if  one  erect  a  dam  in  A,  which  flows 
back  upon  another's  mill  in  B,  the  mill-owner  may  bring 
his  action  in  the  latter  county.^  So  where  the  plaintiff's 
fishery  in  A  was  injured  by  a  dam  in  B,  it  was  held  that  the 
plaintiff  might  sue  in  either  county,  if  either  of  the  parties 
lived  there.*  If  there  are  owners  of  a  water-power  upon 
opposite  sides  of  a  stream,  the  thread  of  the  stream  being  the 
boundary  line  between  their  lands,  they  are  tenants  in  com- 
mon thereof,  and  if  either  draws  or  diverts  more  than  his 
undivided  half  of  the  water,  to  the  injury  of  his  co-tenant,  he 
would  be  liable  to  an  action  by  the  other  owner  therefor. 
But  questions  of  dijfficulty  have  arisen  as  to  the  nature  and 
form  of  the  remedy  in  such  case,  and  as  to  acquiring  pre- 
scriptive rights  by  adverse  enjoyment,  where  this  dividing 
line  is  also  the  boundary  line  of  two  States,  the  period  of 
prescription  being  different  in  different  States.  Thus  in  one 
case  such  stream  divided  Connecticut  and  Rhode  Island,  the 
time  of  prescription  in  the  first  State  being  fifteen  years,  and 
that  in  the  other  twenty  years.  The  owner  upon  the  Rhode 
Island  side  diverted  the  water  from  the  upper  of  two  dams 
on  the  stream,  and  did  not  return  it  again  into  the  stream 
till  it  had  passed  by  the  lower  of  these  dams. 

In  respect  to  the  jurisdiction  which  should  take  cognizance 

Hartshorn  v.  South  Reading,  3  Allen,  501 ;  Nash  v.  Peden,  1  Speers,  17;  Sedgw. 
Damages,  141,  et  seq. 

^  Com.  Dig.,  Action  upon  the  Case  for  a  Nuisance,  A  ;  Baer  v.  Martin,  8  Blackf. 
317. 

■■^  Mersey  &  Irwell  Nav.  Co.  v.  Douglass,  2  East,  497. 

3  Thompson  v.  Crocker,  9  Pick.  59  ;  Sutton  v.  Clarke,  6  Taunt.  29  ;  Worster 
V.  Winnipiseogee  Lake  Co.,  5  Fost.  525. 

*  Barden  v.  Crocker,  10  Pick.  383. 


662  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.        [Cii.  VI. 

of  this  injury,  the  court  held  that  an  injury  to  an  easement 
by  acts  done  in  one  State,  may  be  sued  for  in  that  State, 
though  the  principal  estate  be  in  another,  as  for  obstructing 
a  way  in  A,  which  is  appurtenant  to  an  estate  in  B.  In  this 
case,  therefore,  as  the  owner  on  the  Connecticut  side  was  in- 
jured by  the  act  done  by  the  other  party  on  the  Rhode  Island 
side,  the  former  may  bring  his  action  in  Rhode  Island  for  the 
injury  thereby  done.  If,  for  instance,  the  owner  on  the  Con- 
necticut side  instead  of  this  were  to  obtain  an  injunction 
against  the  owner  upon  the  other  side  in  the  courts  of  that 
State  in  respect  to  the  canal  by  which  he  diverts  the  water, 
it  would  be  inoperative,  and  could  not  be  enforced  in  Rhode 
Island,  it  being  a  proceeding  quasi  in  rem. 

And  it  seems  that  one  who  is  injured  by  such  an  act  may 
have  his  action,  either  where  the  act  is  done,  or  the  conse- 
quential injury  is  suffered  at  his  election.  Nor  could  the 
defendant  to  a  suit  in  Rhode  Island  avail  himself  of  the  stat- 
ute of  limitation  of  Connecticut.  The  action,  in  this  respect, 
would  be  governed  by  the  statute  of  the  State  in  which  the 
action  was  prosecuted.  So,  in  the  courts  of  Rhode  Island,  the 
parties  would  be  governed  as  to  what  act^  would  give  a  pre- 
scriptive right  by  the  law  of  Rhode  Island,  as,  for  instance,  if 
a  mere  occupation  of  a  water  privilege  would  give  a  prescrip- 
tive right  to  the  enjoyment  of  it  in  Connecticut,  it  would  not 
justify  the  act  done  in  Rhode  Island,  where,  to  gain  such 
right,  requires  that  it  should  be  by  an  adverse  occupation 
and  enjoyment.^ 

6.  Any  one  in  possession  of  the  premises  to  which  an 
easement  belongs  may  have  an  action  for  an  obstruction  or 
disturbance  of  enjoyment  of  the  same.^  Thus  a  tenant  at 
will  may  have  such  an  action  for  disturbance  of  a  right  of 
way  or  drain.^     And  if  the  same  b^  an  injury  to  the  inheri- 

1  Stillman  v.  "White  Rock  Co.,  3  W.  &  Min.  538 ;  Thompson  v.  Crocker,  9 
Pick,  61  ;  3  Lion,  141  ;  Borden  v.  Crocker,  10  Pick.  383;  Bulwer's  case,  7  Co. 
1.  See  Rundle  v.  Delaware  &c.  Canal,  1  Wallace,  Jr.  275 ;  Famum  v.  Blackstone 
Canal,  1  Sum.  46. 

2  3  Stephen,  N.  P.  2366  ;  Com.  Dig.,  Action  upon  the  Case  for  a  Nuisance,  B. 

3  Foley  V.  Wycth,  2  Allen,  135  ;  Hastings  v.  Livermorc,  7  Gray,  194. 


Sect.  2.]    REMEDY   AT   LAW   FOR   INJURIES   TO   EASEMENTS.  663 

tance,  an  action  will  also  lie  in  favor  of  a  rcTersioner.^ 
What  would  constitute  such  an  injury  is  considered,  among 
many  others,  in  the  cases  cited  below.^ 

*7.    An  action  of  ejectment  will  not  lie  against   [*571] 
one  claiming  an  easement  in  a  parcel  of  land,  to  try 
his  right  to  enjoy  the  same.^ 

8.  But  the  owner  in  fee  of  land  may  maintain  a  writ  of 
entry  to  establish  his  title  to  the  freehold  against  one  having 
a  prescriptive  right  of  way  over  the  same."^ 

9.  In  respect  to  who  is  liable  to  be  sued  on  account  of  a 
nuisance  to  a  private  easement,  the  rule  at  common-law  is 
thus  stated  :  "An  action  of  the  case  lies  against  him  who 
erects  a  nuisance,  and  against  him  who  continues  a  nuisance 
erected  by  another.  The  occupant,  as  well  as  the  owner  of 
the  place,  suppose  a  house  or  mill,  erected  to  the  nuisance  of 
another,  is  liable  in  an  action  of  the  case,  which  may  be 
brought  by  successive  owners  and  occupants  of  the  place 
where  the  injury  is  sustained.  In  short,  the  continuance, 
and  every  use  of  that  which  is  in  its  erection  and  use  a 
nuisance,  is  a  new  nuisance,  for  which  the  party  injured  has 
a  remedy  for  his  damages.  And  altliough,  after  judgment, 
and  damages  recovered  in  an  action  for  erecting  a  nuisance, 
another  action  is  not  to  be  maintained  for  the  erection,  yet 
another  action  will  lie  for  tlie  continuance  of  the  same  nui- 
sance."^ And  a  party  aggrieved  may  sue  the  one  creating 
or  the  one  continuing  a  nuisance,  at  his  election.*^ 

10.  A  similar  doctrine  is  maintained  in  Norton  v.  Volen- 

^  Hastings  v.  Livermore,  7  Gray,  194;  Com.  Dig.,  Action  upon  the  Case  for  a 
Nuisance,  B  ;  Kidgill  v.  Moor,  9  C.  B.  3G4  ;  Metropolitan  Association,  &c.  v. 
Fetch,  5  C.  B.  n.  s.  504  ;  Tinsman  v.  Belvidere,  &c.  R.  R.  Co.,  1  Dutch.  255  ; 
Brown  v.  Bowen,  30  N.  Y.  519. 

^  Baxter  v.  Taylor,  4  Barnew.  &  Ad.  72  ;  Tucker  v.  Newman,  11  Adolph.  & 
E.  40;  Shadwell  v.  Hutchinson,  3  Carr.  &  P.  615;  Dobson  v.  Blackmorc,  9 
Q.  B.  991 ;  Sedgw.  Damages,  139  ct  seq. 

3  Child  V.  Chappell,  6  Seld.  246,  251  ;  Wilklow  v.  Lane,  37  Barb.  244 ;  Cald- 
well V.  Fulton,  31  Fenn.  483  ;  Clement  v.  Youngmau,  40  Penn.  341. 

*  Morgan  v.  Moore,  3  Gray,  319. 
*     5  Staple  V.  Spring,  10  Mass.  72,  74 ;  Sedgw.  Damages,  144. 

"  Eastman  v.  Company,  &c.  44  N.  H.  158,  159. 


664  THE    LAW    OF   EASEMENTS   AND    SERVITUDES.         [Cir.  YI. 

tine,  whereby  a  purchaser  of  an  estate  upon  which  there  is  a 
subsisting  nuisance  affecting  an  easement  upon  an  adjoining 
estate,  was  held  liable  for  continuing  the  same,  without  any 
previous  notice  or  request  to  remove  it.  The  subject-matter, 
however,  of  the  injury  there,  was  an  interruption  of  the 
natural  flow  of  a  stream  by  means  of  the  nuisance  com- 
plained of.^ 
[*572]  *11.  The  rule  would  doubtless  be  uniform  in 
respect  to  the  liability  of  any  purchaser  or  occupant 
of  an  estate,  for  continuing  a  nuisance  thereon,  which  had 
been  erected  by  a  previous  owner  or  occupant.^  But  there 
are  cases  wliere  it  has  been  held,  that,  before  such  purchaser 
can  be  made  liable,  he  must  be  notified,  and  requested  to 
abate  or  remove  the  nuisance.  The  rule,  as  laid  down  in 
Penruddock's  case,'^  is  a  general  one,  that  such  purchaser 
would  not  be  liable  for  simply  continuing  a  structure  which 
causes  a  nuisance,  until  after  notice  and  request  to  remove 
it.  And  such  seems  to  be  recognized  as  law  in  the  cases  of 
Johnson  v.  Lewis,*  Pillsbury  v.  Moore,^  Plumer  v.  Harper,*^ 
and  Woodman  v.  Tufts.'^  And  the  case  of  Norton  v.  Volen- 
tine,  under  its  circumstances,  can  hardly  be  considered  as 
opposed  to  these  cases,  for  the  judge,  in  giving  the  opinion, 
says  :  "If  it  were  necessary  to  decide  this  case  upon  this 
point,  I  am  not  at  present  prepared  to  go  the  length  of  the 
old  cases,  nor  that  in  Connecticut,  still  less  am  I  prepared  to 
say  they  are  not  well  founded.^ 

In  Michigan,  however,  the  court  doubt  if  it  is  necessary  to 
notify  the  purchaser  of  what  constitutes  an  existing  nuisance 

1  Norton  v.  Volentine,  14  Vt.  239. 

2  Sedgw.  Damages,  145  ;  2  Hilliard,  Torts,  90 ;  Brady  v.  Weeks,  3  Barb.  157; 
Bemis  v.  Clark,  11  Pick.  452,  485. 

3  Penruddock's  case,  5  Rep.  101.  *  Johnson  v.  Lewis,  13  Conn.  303. 
5  Pillsbury  v.  Moore,  44  Me.  154. 

•^  Plumer  v.  Harper,  3  N.  H.  88.     See  also  Carleton  v.  Rcdington,  1   Post. 
291  ;  Eastman  v.  Company,  44  N.  H.  156  ;  Snow  v.  Cowles,  2  Foster,  296. 

7  "Woodman  v.  Tufts,  9  N.  H.  88. 

"  Norton  v.  Volentine,  14  Vt.  239,  245.     See  also  Salmon  v.  Bensley,  Ey.  • 
&  M.  189,  that  notice  to  one  tenant  binds  his  successor. 


Sect.  2.]    REMEDY   AT   LAW   FOR   INJURIES   TO   EASEMENTS.  665 

to  another,  before  he  would  be  liable  to  an  action  for  con- 
tinuing it.  But  they  hold  that  if  such  notice  had  been 
given,  and  then  the  owner  of  the  land  affected  by  the 
nuisance  were  to  convey  it  to  a  third  party,  it  would  not  be 
necessary  for  him  to  give  a  new  notice  before  bringing  his 
action  for  such  continuance  of  the  nuisance.^ 

So  if  the  party  who  creates  the  nuisance  continues  it  after 
the  owner  of  the  land  which  is  injured  by  it  has  conveyed  it 
to  a  third  person,  such  purchaser  has  no  occasion  to  notify 
him  of  its  being  a  nuisance  before  commencing  an  action  for 
continuing  it.^ 

But  it  was  held  in  Maryland,  that  if  one  buys  land  affected 
by  a  nuisance,  he  must  give  notice  to  the  party  maintaining 
it,  before  he  can  bring  his  action  for  continuing  it.^ 

And  the  reader  will  find  a  collection  of  American  cases 
upon  the  subject  in  a  note  to  the  case  of  Todd  v.  Flight."^ 

12.  But  where  the  owner  of  the  servient  estate  destroys 
the  subject-matter  of  the  easement,  as,  for  instance,  fills  up 
the  well  from  which  the  dominant  drew  water,  or  builds 
buildings  over  it  so  that  it  cannot  be  reached,  and  then 
conveys  it  to  a  stranger,  the  latter  would  not  be  liable  to  the 
owner  of  the  dominant  estate  for  the  loss  of  the  easement. 
It  is  gone  before  he  becomes  the  owner.^ 

*13.  If  the  owner  of  an  estate  erect  a  nuisance   [*573] 
thereon  to  the  injury  of  a  neighboring  estate,  and 
demise  it  in  that  condition,  he  will  still  continue  liable  if  the 
nuisance  is  continued  by  his  tenant.*^ 

14.  The  same  rule  would  apply  if  the  vendor  conveyed 
the  premises  with  covenants  of  warranty  ;  he  would  be  liable 


1  Caldwell  V.  Gale,  11  Mich.  77. 

-  Eastman  v.  Company,  44  N.  H.  157  ;  Curtice  v.  Thompson,  19  N.  H.  471. 

3  Pickett  V.  Condon,  18  Md.  417. 

■*  Todd  V.  Flight,  9  C.  B.  n.  s.,  Am.  ed.  377,  390. 

5  Ballard  v.  Butler,  30  Me.  94. 

6  Fish  V.  Dodv-e,  4  Denio,  311  ;  Rosewell  v.  Prior,  1  Lord  Rayra.  713.     See 
Todd  V.  Flight,  9  C.  B.  n.  s.  377,  and  note  to  Am.  ed.  ;  Sedgw.  Damages,  145. 


QQQ  THE   LAW   OF  EASEMENTS  AND  SERVITUDES.         [Cii.  VL 

for  a  continuance  of  the  nuisance  subsequently  to  the  con- 
veyance.^ 

15.  And  one  who  erects  a  nuisance  to  another's  estate 
would  be  liable  for  a  continuance  of  the  same,  though  the 
erection  were  upon  land  not  belonging  to  the  defendant,  and 
he  could  not  abate  or  remove  the  same  without  being  a  tres- 
passer.2 

16.  While  the  owner  of  an  easement  may  have  an  action 
against  the  owner  of  an  adjacent  estate  for  a  disturbance 
thereof  created  upon  his  own  premises,  it  often  occurs  that 
one  undertakes  to  justify  acts  which  would  otherwise  be  un- 
lawful, as  injuriously  affecting  another's  possession,  on  the 
ground  that  he  had  a  right  to  do  so  under  and  by  virtue  of 
a  right  of  easement.  And  where,  to  an  action  for  such  in- 
jury, the  defendant  justifies  in  his  plea,  great  particularity 
and  precision  are  required  in  stating,  for  instance,  the  right 
of  way  under  which  the  defendant  alleges  a  right  to  enter 
upon  the  close  of  the  plaintiff. 

Illustrations  of  this  are  found  in  Wright  v.  Rattray  ^  and 
Slowman  v.  West.^  In  the  first  of  these  it  was  held,  that, 
if  the  way  be  claimed  by  prescription,  it  must  be  set  out  in 
the  same  manner  as  if  it  had  been  by  grant.  Thus,  if  one 
justify,  under  a  right  of  way  from  A  over  B  and  C 
[*574]  *  to  D,  he  would  not  sustain  his  plea  of  a  right  of 
way  over  B,  by  showing  a  prescriptive  right  of  way 
from  A  to  C,  which  does  not  extend  to  D.  But  had  he  set 
up  a  claim  of  a  way  from  A  over  B  towards  D,  whether  this 
would  have  amounted  to  a  justification  or  not,  is  left  doubt- 
ful. In  the  otlier,  Doddridge,  J.  puts  this  case :  "  If  a  man 
have  a  right  of  way  from  his  house  to  the  church,  and  the 
close  next  his  house,  over  which  the  way  leads,  is  his  own, 
he  cannot  prescribe  that  he  has  a  right  of  way  from  his 

^  Wii},'goncr  V.  Jennaine,  3  Denio,  306,  explaining  Blunt  v.  Aikin,  15  Wend. 
522  ;  Scdgw.  I)amaf,rcs,  145  ;  2  Billiard,  Torts,  91. 

-  Tlionipson  v.  Gibson,  7  Mees.  &  W  456  ;  Smitii  v.  Elliott,  9  Penn.  St.  345. 
^  Wright  V.  Rattray,  1  East,  377. 
*  Slowman  v.  West,  Palm.  387. 


Sect.  2.]    REMEDY  AT   LAW   FOR   INJURIES   TO   EASEMENTS.  667 

house  to  the  church,  because  he  cannot  prcscriljc  for  a  way 
over  his  own  land." 

And  the  more  recent  case  of  Colchester  v.  Roberts  is  equal 
Ij  definite  and  precise  in  the  application  of  these  rules.  The 
action  was  trepass  qu.  cl.  The  defendant  pleaded  a  right  of 
way  from  a  highway  over  the  plaintiff's  close,  to  his  house, 
by  having  enjoyed  the  same  for  twenty  years.  The  plaintiff 
replied,  that  such  enjoyment  had  been  by  plaintiff's  leave 
and  license.  On  the  trial  it  was  proved  that  the  defendant 
owned  a  close,  R,  to  reach  which  he  had  to  go  from  his 
house  over  the  plaintiff's  close  and  across  a  highway  to  the 
same.  The  plaintiff  showed  that  the  defendant  had  had 
leave  and  license  to  go  from  his  house  to  the  highway,  and 
thence  where  he  pleased,  without  going  to  his  close  R.  But 
it  was  held  that  the  replication  did  not  meet  the  defendant's 
plea,  for  he  might  have  a  right  of  way  to  his  close  A,  where- 
by he  might  go  to  and  cross  the  highway,  and  another  to  the 
highway,  and  not  to  go  to  his  close  R,  but  to  some  other 
place  on  the  highway,  or  to  which  the  highway  leads,  and 
that  the  latter  way,  by  license,  was  no  answer  to  the  right 
set  up  to  go  to  R  by  passing  to  and  across  the  highway. 
The  general  right  of  way  to  the  road  and  thence  to  all  other 
places  included  a  right  to  go  to  R.  The  traverse,  therefore, 
by  the  replication,  would  include  the  right  of  going  to  the 
highway,  and  thence  to  R,  and  as  the  case  finds  the 
defendant  had  the  last-mentioned  *way,  and  as  he  [*575] 
had  it  without  leave  and  license  of  the  plaintiff,  the 
replication  was  not  sustained. ^ 

So  where  defendant  to  an  action  of  trespass  pleaded  a 
right  of  way  on  foot  and  with  horses,  cattle,  carts,  wagons, 
and  other  carriages,  for  the  convenient  occupation  of  his 
close  K,  the  jury  found  he  only  had  a  right  to  cart  wood 
and  timber  over  plaintiff's  close.  It  was  held  that  the  plain- 
tiff was  entitled  to  a  general  verdict,  for  it  was  not  averred 

1  Colchester  v.  Roberts,  4  I\Ices.  &  W.  7C9. 


068  THE   LAW   OF  EASEMENTS  AND   SERVITUDES.         [Cji.  VI. 

ill  the  plea  that  he  was  using  the  way  to  carry  wood  or  tim- 
ber on  the  occasion  charged  in  the  declaration.^ 


SECTION    III. 

REMEDY  IN  EQUITY   FOR   INJURIES   TO   EASEMENTS. 

1.  Where  a  bill  in  equity  for  an  injunction  lies. 

2.  To  what  class  of  injuries  this  applies. 

3.  Where  courts  restrain  public  nuisances. 

4.  Injunction  not  granted  to  individuals  for  public  nuisance. 

5.  Granting  injunction  a  discretionary  power. 

6.  Power  of  courts  of  equity  over  nuisances. 

7.  Cases  where  this  power  has  been  applied. 

8.  Barrow  v.  Richard.     Equity  interposes  where  the  law  cannot. 

9.  10.  Where  equity  interposes,  though  title  doubtful. 

11.  Where  equity  will  not  interpose  till  right  settled  at  law. 

12.  Statute  proceedings  for  abating  private  nuisances. 

1.  Besides  his  remedy  by  action  at  common  law,  the 
owner  of  an  easement  may,  as  a  general  proposition,  not 
only  seek  redress  for  an  infringement  of  his  right  to  the 
same  through  a  court  of  equity,  but  may  prevent  the  same, 
when  threatened,  by  an  application  to  that  court  for  an  in- 
junction to  that  effect.  If  the  title  of  the  plaintiff,  in  such 
case,  is  in  controversy,  the  court  will  not  ordinarily 
[*576]  *  interpose  by  way  of  injunction  until  the  same  has 
been  established  at  law,  unless  the  injury  to  be  done 
by  the  threatened  act  is  of  a  nature  to  require  immediate 
interference  in  order  to  prevent  great  and  permanent  mis- 
cliief. 

The  language  of  Story,  in  his  Equity  Jurisprudence,  upon 
the  subject  is  this :  "  In  regard  to  private  nuisances,  the  in- 
terference of  courts  of  equity,  by  way  of  injunction,  is  un- 
doubtedly founded  upon  the  ground  of  restraining  irrepara- 
ble mischief,  or  of  suppressing  oppressive  and  interminable 

^  Iligham  i\  Kubett,  5  Binjj.  n.  c.  622.     See  Knight  i'.  Woorc,  3  Bing.  N.  c.  3. 


Sect.  3.]    EEMEDY  IN  EQUITY   FOR  INJURIES   TO   EASEMENTS.      669 

litigation,  or  of  preventing  multiplicity  of  suits.  It  is  not 
every  case  which  will  furnish  a  right  of  action  against  a 
party  for  a  nuisance  which  will  justify  the  interposition  of 
courts  of  equity  to  redress  the  injury  or  remove  the  annoy- 
ance. But  there  must  be  such  an  injury  as  from  its  nature 
is  not  susceptible  of  being  adequately  compensated  by  dam- 
ages at  law,  or  such  as,  from  its  continuance  or  permanent 
mischief,  must  occasion  a  constantly  recurring  grievance 
which  cannot  be  otherwise  prevented  but  by  an  injunction. 
A  mere  diminution  of  the  value  of  property  by  the  nui- 
sance, without  irreparable  mischief,  will  not  furnish  any 
foundation  for  equitable  relief.  On  the  other  hand,  where 
the  injury  is  irreparable,  as  where  loss  of  liealth,  loss  of 
trade,  destruction  of  the  means  of  subsistence,  or  permanent 
ruin  to  property  may  or  will  ensue  from  the  wrongful  act 
of  erection  ;  in  every  such  case  courts  of  equity  will  inter- 
fere by  injunction  in  furtherance  of  justice  and  the  violated 
rights  of  the  party.  Thus,  for  example,  where  a  party  builds 
so  near  the  house  of  another  as  to  darken  his  windows, 
against  the  clear  rights  of  the  latter,  either  by  contract  or 
by  ancient  possession,  courts  of  equity  will  interfere  by  in- 
junction to  prevent  the  nuisance,  as  well  as  to  remedy  it,  if 
already  done,  although  an  action  for  damages  would  lie  at 
law,  for  the  latter  can,  in  no  just  sense,  be  deemed  an  ade- 
quate relief  in  such  a  case."  ^ 

And  equity  often  interposes  to  protect  easements  and  en- 
force their  enjoyment  where  there  is  no  adequate  remedy  at 
law,  by  reason  of  the  want  of  privity  between  the  owners  of 
the  estates  alleged  to  be  dominant  and  servient  to  each 
other.  And  this  is,  especially,  true  of  that  class  of  ease- 
ments which  have  been  called  equitable.^ 

*2.  Among  the  cases  mentioned  as  those  where   [*577] 

1  2  Story,  Eq.  Jurisp.,  Eedfield's  ed.,  §§  925,  926 ;  1  Fonbl.  Eq.,  Laussat's 
.  ed.,  3,  note. 

-  Parker  v.  Nightingale,  6  Allen,  341  ;  Gibert  v.  Petelcr,  38  Barb.  513;  Brou- 
wer  V.  Jones,  23  Barb.  153;  Hubbellv.  Warren,  8  Allen,  173;  Tallmadge  v. 
East  River  Bank,  26  N.  Y.  105,     Ante,  p.  =**^63,  and  cases  cited. 


670      THE  LAW  OF  EASEMENTS  AND  SERVITUDES.    [Ch.  VI. 

courts  of  equity  will  interpose  for  the  protection  of  parties, 
are  obstructions  to  watercourses,  the  diversion  of  streams 
from  mills,  and  pulling  down  of  the  banks  of  rivers,  and 
thereby  exposing  adjacent  lands  to  inundation,  or  adja- 
cent mills  to  destruction,  and  digging  in  one's  soil  so  as  to 
endanger  a  neighbor's  buildings.  So  where  easements  or 
servitudes  are  annexed  to  private  estates.^ 

3.  They  can  interpose  in  case  of  public  nuisances,  where 
courts  of  law  cannot,  to  restrain  and  prevent  them  when 
threatened,  or  if  they  are  in  progress,  as  well  as  to  abate 
those  already  existing.^ 

4.  But  though  a  bill  in  equity  will  lie  to  restrain  a  per- 
manent and  continuous  injury  to  a  private  easement,  courts 
will  not  in  that  manner  aid  an  individual  to  sustain  his  right 
to  enjoy  a  public  easement,  when  the  injury  of  which  he  com- 
plains affects  the  whole  community.^ 

In  Rhea  v.  Forsyth  the  court  say  :  "  Where  the  plaintiff's 
right  has  not  been  established  at  law,  or  is  not  clear,  but  is 
questioned  on  every  ground  on  which  he  puts  it,  not  only  by 
the  answer  of  the  defendant,  but  by  proofs  in  the  cause,  he 
is  not  entitled  to  remedy  by  injunction."* 

5.  But  whether  the  court  will  exercise  this  power  of 
granting  an  injunction  in  any  given  case  or  not,  is  within 
the  sound  discretion  of  the  court,  and  it  will  be  withheld  if 
it  will  operate  oppressively  or  inequitably,  or  contrary  to  the 
real  justice  of  the  case.  Thus,  where  the  owner  of  a  build- 
ing encouraged  the  owner  of  adjoining  land  to  build 

[*578]   thereon,  *  the  court  will  not  stop  the  work  on  the 
ground  that  it  is  likely  to  do  an  injury  to  the  prem- 
ises of  the  other  party .^ 

1  2  Story,  Eq.  Jurisp.,  Redfield's  ed.,  §§  927,  927  a;  Bardwell  v.  Ames,  22 
Pick.  332,  353  ;  Stevens  v.  Stevens,  11  Mete.  251. 

2  2  Story,  Eq.  Jurisp.,  Redfield's  ed.  §§  924,  924  a.     See  2  Green,  Ch.  139,  note. 

3  Hartshorn  v.  South  Reading,  3  Allen,  501  ;  Brainard  v.  Conn.  Riv.  R.  R. 
Co.,  7  Cash.  506. 

*  Rhea  v.  Forsyth,  36  Penn.  St.   503,  507  ;  King  v.  M' Cully,  38  Penn.  St. 
76 ;  Coe  v.  Lake  Co.,  37  N.  H.  254. 
5  2  Story,  Eij.  Jur.,  §  959  [a ;  1  Fonbl.  Eq.,  Laussat's  ed.  49,  note ;  Williams 


Sect.  3.]    REMEDY   IN   EQUITY   FOR  INJURIES   TO   EASEMENTS.      071 

6.  In  a  note  to  Ponblanque's  Equity,  just  cited,  it  is  said : 
"  In  cases  of  private  nuisance,  chancery  has  a  concurrent 
jurisdiction  with  courts  of  law.^  It  can  order  them  to  be 
abated,  as  well  as  restrain  them  from  being  erected.  On 
motion,  the  court  will  sometimes  order  a  tiling  going  on  to 
be  stayed.  But  it  will  never  order  it  to  be  pulled  down, 
without  first  hearing  the  opposite  party  .^  But  the  cases  in 
which  chancery  has  interfered  by  injunction  to  prevent  or 
remove  a  private  nuisance  are  those  in  which  the  nuisance 
has  been  erected  to  the  prejudice  or  annoyance  of  a  right 
which  the  other  party  had  long  previously  enjoyed.  It  must 
be  a  strong  and  mischievous  case  of  pressing  necessity,  or 
the  right  must  have  been  previously  established  at  law."  ^ 
In  the  case  of  Earle  v.  De  Hart  the  Chancellor  says :  "  The 
complainant  is  entitled  to  have  the  obstruction  removed. 
There  is  no  reason  why  the  court  should  not  exercise  a 
power  to  abate  as  well  as  prevent  the  erection  of  nuisances, 
in  clear  cases." 

So  equity  may  interpose  and  abate  a  dam  which  causes  an 
injury  to  another's  land,  if  erected  or  maintained  without 
right.*  Or  it  may  suppress  a  nuisance  like  the  corrupting 
of  the  waters  of  a  stream,  at  the  prayer  of  an  injured  party  .^ 

7.  The  case  of  Van  Bergen  v.  Van  Bergen  was  that  of  a 
mill,  where  the  plaintiff  alleged  that  the  defendant  flowed 
back  water  to  interrupt  its  use.  But  the  court  refused  to 
grant  an  injunction,  first,  because  the  plaintiff  had  an  ade- 

V.  Jersey,  1  Craig  &  P.  91.  See  Short  v.  Taylor  &  Anonymous,  2  Eq.  Cas. 
Abr.  522. 

1  Gardner  v.  Village  of  Newburgh,  2  Johns.  Ch.  162;  Van  Bergen  v.  Van 
Bergen,  Ibid.  272. 

-  Van  Bergen  v.  Van  Bergen,  supra;  Earle  v.  De  Hart,  1  Beasl.  280,  287  ; 
Hammond  v.  Fuller,  1  Paige,  197.     See  cases  collected,  2  Green,  Ch.  136,  note. 

3  Van  Bergen  v.  Van  Bergen,  3  Johns.  Ch.  282;  Reid  v.  GifFord,  6  Johns. 
Ch.  19.  See  Wood  v.  Sutcliff,  8  Eng.  L.  &  Eq.  217  ;  Burden  v.  Stein,  27  Ala. 
104 ;  Corning  v.  Lowerre,  6  Johns.  Ch.  439  ;  Back  v.  Stacy,  2  Russ.  121. 

*  Ackerman  v.  Horicon  Co.,  16  Wise.  154;  Sheldon  v.  Rockwell,  9  Wise.  166; 
Ang.  W.  C.  §§  444,  445. 

^  Holsman  v.  Boiling  Spring  Co.,  1  M'Cart.  342.  See  Lewis  v.  Stein,  16 
Ala.  214. 


672  THE  LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  VI. 

quate  remedy  at  law ;  and  his  right,  moreover,  at  law  was  in 
dispute.  And  it  appeared,  besides,  that  the  plaintiff  actu- 
ally erected  his  mill  after  the  defendant  had  erected 
[*579]  the  *  dam  complained  of,  and  he  ought  to  settle  his 
legal  rights  in  respect  to  the  same  before  the  court 
could  properly  be  called  on  to  interpose  to  prevent  the  de- 
fendant in  the  use  of  his  dam.^ 

In  Burwell  v.  Hobson  the  defendant  undertook  to  build  a 
dike  and  embankment  along  the  margin  of  a  stream,  the 
effect  of  which  would  be  to  throw  the  water  thereof  upon 
the  land  of  the  plaintiff  on  the  opposite  side  of  the  stream, 
and  the  court  granted  the  injunction  prayed  for.^ 

Where  one  had  an  easement  to  lay  logs,  &c.  upon  another's 
land  as  a  mill-yard,  and  the  owner  of  the  land  obstructed 
the  use  of  the  same  by  placing  gravel  upon  the  land,  the 
court  granted  an  injunction,  and  decreed  damages  to  the 
plaintiff  for  the  injuries  thereby  sustained. ^ 

So  where  one  in  mining  dug  so  near  another's  dwelling- 
house  as  to  endanger  the  same  by  weakening  its  lateral  sup- 
port by  the  natural  soil,  the  court  restrained  any  further 
excavation  by  injunction.* 

So  courts  of  equity  will  restrain  one  mill-owner  from  un- 
lawfully obstructing  the  mill-privilege  of  another .^ 

In  Corning  v.  Lowerre,  above  cited,  the  injury  complained 
of  and  enjoined  was  the  building  of  a  house  upon  a  street, 
which  materially  injured  the  plaintiffs,  as  owners  of  lots 
adjoining  the  same  upon  the  street.*^ 

And  in  Attorney-General  v.  Nichol,  the  court  held  that 
they  would  interpose  to  prevent  one  man  from  obstructing 
the  li^lit  of  another,  where,  from  the  circumstances  of  en- 

1  See  Simpson  v.  Justice,  8  Ired.  Eq.  115. 

2  BurwcU  V.  Hobson  12  Gratt.  322,  332. 

8  Gurney  v.  Ford,  2  Allen,  576  ;  Richardson  v.  Pond,  15  Gray. 
■»  Hunt  V.  Peake,  Johns.  Ch.  (Eng.)  705. 

&  Crittenden  v.  Field,  8  Gray,  621  ;  Bemis  v.  Upham,  13  Pick.  169;  Ballon 
V.  Ilopkinton,  4  Gray,  324  ;  Hill  r.  Sayles,  12  Gush.  454. 
''  Corning  v.  Lowerre,  6  Johns.  Ch.  439.     See  Hills  v.  Miller,  3  Paige,  254. 


Sect.  3.]    REMEDY   IN  EQUITY   FOR   INJURIES   TO   EASEMENTS.      673 

joyment,  usage,  or  interest,  some  contract  can  be  implied 
that  the  adverse  party  should  not  build  upon  the  premises 
on  which  he  has  erected  the  obstruction,  if  the 
*consequences  of  the  act  of  obstruction  appear  to  [*580] 
be  such  as  should  not  only  be  redressed,  but  pre- 
vented. But  they  will  not  do  this  upon  every  degree  of 
darkening  one's  lights  and  windows,  though  ancient,  nor  in 
every  case  where  an  action  upon  the  case  could  be  sustained.^ 

8.  On  the  other  hand,  equity  will  sometimes  interpose  to 
prevent  the  doing  of  an  act  injurious  to  the  plaintiff's  estate, 
although  he  would  be  without  remedy  for  the  injury  by  an 
action  at  common  law.  Thus  in  the  case  of  Barrow  v.  Rich- 
ard, where  M.,  having  a  large  parcel  of  land  in  a  city,  cut  it 
up  into  building-lots,  and  sold  them  to  sundry  individuals, 
taking  a  covenant  in  the  deed  of  each  that  no  offensive  trade 
should  be  carried  on  in  the  premises.  The  plaintiff  was  one 
of  these  purchasers,  and  the  defendant  another.  The  de- 
fendant having  begun  to  carry  on  such  a  business,  it  was 
held  that,  upon  the  plaintiff's  complaint,  the  court  would 
enjoin  him,  although  the  plaintiff  could  not  maintain  an 
action  upon  the  covenant  into  which  the  defendant  had 
entered  with  the  vendor.^ 

9.  But  in  Biddle  v.  Ash  the  court  refused  to  restrain  one 
from  building  so  as  to  stop  the  plaintiff's  lights,  because  the 
title  was  doubtful  and  in  controversy,  though  they  held  that, 
if  the  plaintiff  were  to  make  out  a  case  of  clear  right  by 
contract  or  ancient  possession,  they  would  enjoin  against  the 
erection  of  any  nuisance  which  should  darken  his  lights  or 
interfere  with  his  right  of  way.^ 

10.  Accordingly  the  court,  in  Robeson  v.  Pittenger,^ 
granted  an  injunction  against  building  a  wall  which  dark- 

1  Attorney-General  i\  Nichol,  16  Ves.  338. 

2  Barrow  v.  Richard,  8  Paige,  3.51  ;  Trustees,  &c.  of  Watertown  v.  Cowen,  4 
Paige,  510,  514  ;  Bedford  v.  Trustees  of  British  Museum,  2  Myine  &  K.  552. 
See  ante,  p.  *63,  *576. 

3  Biddle  v.  Ash,  2  Ashm.  211. 

*  Robeson  v.  Pittenger,  1  Green,  Ch.  57. 
43 


674  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  VI. 

ened  the  lights  of  the  plaintiff.  And  in  Shields  v.  Arndt  ^ 
they  granted  a  like  injunction,  to  prevent  the  diver- 
[*581]  sion  of  *the  water  of  a  stream,  and  that  without 
first  having  the  title  of  the  party  to  do  so  tried  at 
law,  the  right  claimed  by  the  plaintiff  having  been  long 
enjoyed.  They  recognize,  however,  the  ordinary  rule  to  be, 
to  have  questions  of  doubtful  title  settled  at  law  before 
equity  will  interpose  by  way  of  injunction. 

11.  But  if  the  injury  be  a  reversionary  one,  and  is  not  in 
its  nature  irreparable,  or  can  be  compensated  in  damages, 
the  court  will  not  grant  an  injunction.  Nor  will  they  where 
the  plaintiff's  title  is  doubtful,  and  there  is  no  danger  of 
irreparable  mischief  therefrom,  until  after  an  issue  of  fact 
tried  at  law.^ 

12.  In  Massachusetts  there  is  provision  made  by  statute 
that,  after  a  judgment  upon  proceedings  at  common  law  for 
the  recovery  of  damages  for  a  private  nuisance,  the  court 
may  issue  a  warrant  to  an  officer,  authorizing  him  to  abate 
and  remove  the  nuisance,  at  the  expense  of  the  defendant. 
And  in  this  the  statute  is  little  more  than  carrying  out  the 
principle  of  the  common  law.^ 

In  South  Carolina  there  is  a  statute  authorizing  certain 
authorities  to  cause  dams  or  embankments  to  be  abated, 
which  one  may  erect  upon  his  own  land,  across  streams, 
which  prevent  the  natural  flow  of  the  water  in  the  same,  to 
the  injury  of  another's  land,  above  such  dam,  unless  the 
owner  of  such  dam  or  embankment  shall  have  made  an 
artificial  drain  on  his  own  land,  and  kept  the  same  in  repair, 
suitable  to  draw  off"  such  water  into  the  natural  stream. 
These  regulations  have  reference  to  the  culture  of  rice- 
swamps  in  that  State.^ 

1  Shields  v.  Arndt,  3  Green,  Ch.  234,  245,  246. 
'■^  In^raham  v.  Dunnell,  5  Mete.  118  ;  Dana  v.  Valentine,  5  Mete.  8. 
"  Mass.  Gen.  St.,  c.  139;  Stevens  v.  Stevens,  11  Mete.  251  ;  Baten's  case,  9 
Rep.  55.     Sec  IJemis  v.  Clark,  1 1  Pick.  452. 
*  ]Jri.st)ano  v.  O'Ncall,  3  Strobli.  348. 


Sect.  4.]  REMEDY   BY   ABATEMENT   FOR  INJURIES.  675 

*SECTION   IV.  [*582] 

REMEDY   BY   ABATEMENT   FOR   INJURIES   TO   EASEMENTS. 

1.  General  right  of  party  injured  to  abate  a  nuisance. 

2.  Care  in  one  abating  not  to  exceed  his  right  to  do  so. 
8.  Greenslade  v.  Halliday.     Case  of  exceeding  this  right. 
4.  One  having  the  right  nnay  do  it  effectually. 

6.  Abating  a  mill-dam  in  part,  though  spoiling  the  privilege. 

6.  One  may  not  injure  third  parties  to  protect  his  own  estate. 

7.  Within  what  time  the  rigiit  of  abatement  is  to  be  exercised. 

8.  Of  the  effect  of  danger  to  the  peace  in  abating  a  nuisance. 

9.  Abatement  no  bar  to  an  action  for  the  nuisance. 

1.  In  cases  of  violation  of  a  right  like  that  of  an  ease- 
ment, by  the  wrongful  acts  of  another  in  erecting  upon  his 
own  land  that  which  causes  such  injury,  the  party  whose 
right  is  thereby  invaded  is  not  obliged  to  seek  his  redress  by 
a  suit  at  law,  or  proceedings  in  equity,  but  may  vindicate  the 
same  by  his  own  act,  by  entering  upon  the  land  of  such 
wrong-doer,  and  abating:,  as  it  is  called,  the  cause  of  such 
injury.  The  language  of  Coke  is  :  "  Note,  reader,  there  are 
two  ways  to  redress  a  nuisance,  —  one  by  action  ;  and  that 
is  to  recover  damages,  and  have  judgment  that  the  nuisance 
shall  be  removed,  cast  down,  or  abated,  as  the  case  re- 
quireth  ;  or  the  party  grieved  may  enter  and  abate  the 
nuisance  himself,  as  it  appeareth  by  17  Edw.  III.  44  and  9 
Edw.  IV.  35."  1 

2.  But  the  party  exercising  this  right  of  abating  a  nui- 
sance to  his  property  must  be  careful  not  to  exceed  the  right 
by  doing  more  than  he  is  justified  to  do.     Thus,  one 
*injured  in  his  property  by  another  raising  his  dam   [*583] 
higher  than  he  had  a  right  to  do,  and  thereby  flowing 

1  Baten's  case,  9  Rep.  5.5  ;  Perry  v.  Fitzhowe,  8  Q.  B,  757  ;  Penruddock's 
case,  5  Rep.  101  ;  Great  Falls  Co.  v.  Worster,  15  N.  H.  412;  Adams  v.  Bar- 
ney, 25  Vt.  225 ;  Amick  v.  Tharp,  13  Gratt.  564,  567  ;  Rex  v.  Rosewell,  2  Salk. 
459 ;  ante,  chap.  3,  sect.  5,  pi.  14 ;  2  RoUe,  Abr.,  Nuisance,  S  ;  Raikes  v.  Towns- 
end,  2  Smith,  9  ;  Com.  Dig.,  Action  on  the  Case  for  a  Nuisance,  D.  4;  Rhea  v. 
Forsyth,  37  Penn.  St.  503. 


676  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cii.  VI. 

back  water  upon  the  same,  may  enter  upon  the  premises  of 
the  owner  of  the  dam,  and  abate  the  same  to  its  proper 
height.  But  he  may  not  abate  it  altogether,  nor  beyond 
what  is  necessary  to  reduce  the  flowing  to  its  proper  limits  ; 
and  the  same  rule  applies  to  all  cases  of  abating  nuisances 
by  the  party's  own  act.^ 

3.  Thus,  in  Greenslade  v.  Halliday,  one  had  a  right  to 
divert  the  water  of  a  stream  for  the  purpose  of  irrigating  his 
land,  by  placing  loose  stones  or  a  board  across  the  stream. 
He  drove  stakes  in  the  stream  to  support  the  board  more 
firmly  than  it  had  been  previously  done,  but  which  he  had  no 
right  to  do ;  and  another,  who  was  interested  in  the  water, 
entered  upon  the  premises,  and  removed  the  stakes  and  the 
board ;  and  it  was  held  that  he  was  liable  for  the  removal 
of  the  board,  though  he  might  have  removed  the  stakes. 

So  in  Dyer  v.  Depui,  one  having  erected  a  house  so  high 
as  to  obstruct  the  ancient  windows  of  another,  it  was  held 
that  the  latter  might  abate  so  much  of  the  house  as  obstruct- 
ed his  lights,  but  could  not  destroy  the  entire  house.^ 

But  the  party  will  not  be  justified  in  abating  by  his  own 
act  an  erection  upon  his  neighbor's  land,  until  he  shall  have 
actually  been  injured  by  it.  It  is  not  enough  that  he 
apprehends  the  structure  will  injure  him,  or  that  the  one 
erecting  it  intends  to  use  it  so  as  to  injure  him. 
[*584]  *in  the  enjoyment  of  his  estate.  He  must  wait  until 
it  has  begun  to  injure  him  before  he  can  enter  upon 
his  neighbor's  land  to  abate  it.^ 

1  Dyer  v.  Depui,  5  "Whart.  584 ;  Heath  v.  Williams,  25  Me.  209 ;  Jewell 
».  Gardiner,  12  Mass.  311;  Hodges  v.  Eaymond,  9  Mass.  316;  Greenslade  v. 
Halliday,  6  Bing.  379;  Colburn  v.  Richards,  13  Mass.  420;  Gates  y.  Blincoe, 
2  Dana,  158;  Prescott  v.  Williams,  5  Mete.  429 ;  Prescott  v.  White,  21  Pick. 
341  ;  Rex  v.  Pappineau,  Strange,  686  ;  Perry  v.  Fitzhowe,  8  Q.  B.  757 ;  James 
V.  Hayward,  W.  Jones,  221,  222  ;  Rex  v.  Rosewell,  2  Salk.  459;  Mason  v. 
Cajsar,  2  Mod.  65  ;  Davies  v.  Williams,  16  Q.  B.  546  ;  Moffctt  v.  Brewer,  1 
Green,  Iowa,  348;  Elliot  v.  Fitchburg  R.  R.  Co.,  10  Cush.  191;  Wright  v. 
Moore,  38  AJa.  599. 

2  Sec  also  Rex  v.  Pappineau,  supra. 

8  Norris  v.  Baker,  1  Rolle,  393 ;  Jones  v.  Powell,  Palm.  536. 


Sect.  4.]  REMEDY   BY   ABATEMENT   FOR  INJURIES.  677 

Though  if  his  neighbor  erects  his  house  with  eaves  pro- 
jecting over  his  land,  he  need  not  wait  till  the  rain  shall  have 
actually  fallen  upon  his  neighbor's  roof,  and  been  thereby 
thrown  upon  his  land,  before  he  may  abate  the  part  that 
projects  over  his  land.^ 

4.  But  if  one  having  a  right  of  easement  in  another's 
premises  unlawfully  extends  the  use  of  the  same,  or  uses  it 
in  connection  with  rights  not  belonging  to  them,  the  owner 
of  the  tenement  may  stop  the  excess  of  such  use  ;  and  if  he 
cannot  do  this  without  stopping  its  use  altogether,  he  may 
do  so,  until  a  separation  of  the  lawful  from  the  unlawful  use 
can  be  made,  and  the  illegal  part  is  stopped  by  itself.^ 

So  if  the  branches  of  a  tree  growing  in  one's  land  extend 
beyond  the  line  of  the  same,  and  over  his  neighbor's  land, 
the  latter  may  cut  them  off  so  far  as  they  extend  over  his 
land.^ 

5.  And  this  doctrine  of  the  right  of  abating  a  nuisance 
by  one's  own  act  was  applied  in  the  case  of  two  owners  of  a 
mill-privilege  divided  by  the  thread  of  the  stream,  where 
one  of  them  erected  a  dam  across  the  entire  stream.  It  was 
held  that  the  owner  of  the  land  upon  the  other  side  of  the 
thread  of  the  stream  might  abate  so  much  of  the  dam  as 
stood  upon  his  land.* 

If  in  abating  the  dam  upon  his  own  land  he  do  no  more 
than  is  necessary  to  remove  it,  but  the  effect  is  to  have  the 
whole  water  of  the  pond  escape,  and  the  other  part 
of  the  *dam  to  fall,  he  would  not  be  responsible  for  [*586] 
these  consequences.  And  it  is  said :  "  So  if  one 
erects  a  wall  upon  his  own  land  and  the  land  of  his  neighbor, 
and  the  neighbor  pulls  down  the  wall  upon  his  land,  and 
thereupon  all  the  wall  falleth  down,  this  is  lawful."  ^ 

1  Penruddock's  case,  5  Rep.  101. 

2  Elliott  V.  Rhett,  5  Rich.  405,  421.     See  ante,  as  to  lights,  p.  *.540. 
^  3  Sharsw.  Black.  Comm.  5,  and  cases  cited. 

*  Adams  v.  Barney,  25  Vt.  225  ;  Merritt  v.  Parker,  Coxe,  460 ;  Aug.  Water- 
courses, §  332. 

*  Wigford  V.  Gill,  Cro.  Ellz.  269. 


678  THE   LAW   OF  EASEMENTS   AND   SERVITUDES.         [Cn.  VI. 

6.  Upon  tlie  same  principle,  one  may  protect  his  property 
against  being  overflowed  by  the  unlawful  act  of  another, 
by  erecting  embankments  along  the  stream,  provided  hy  so 
doing  he  does  not  injure  the  land  of  a  third  party,  who  took 
no  part  in  causing  such  overflowing.  "  But,"  says  Daniel, 
J.,  in  Amick  v.  Tharp,  "  The  circumstances  which  justify 
a  resort  to  counter  works,  which  must  result  in  damage  to 
the  property  of  the  wrong-doer,  are  by  no  means  clearly  de- 
fined." In  that  case,  the  city  had  turned  the  course  of  a 
spring  on  to  the  defendant's  land,  which  he  stopped,  and 
thereby  caused  the  water  to  set  back  upon  the  plaintiff" 's 
land  ;  and  for  this  the  defendant  was  held  liable.^ 

7.  The  court  in  Iowa  held,  in  the  case  of  Moffit  v.  Brewer, 
that,  in  order  to  justify  one  in  going  upon  another's  land  to 
abate  a  nuisance,  he  must  do  it  within  a  reasonable  time 
after  the  nuisance  was  created,  or  began  to  operate  as  a  nui- 
sance upon  him  ;  and  if  he  forebore  to  exercise  the  right 
within  such  reasonable  time,  his  only  remedy  would  be  by 
a  resort  to  legal  proceedings,  though  they  add,  upon  the 
point,  "  We  have  very  little  law  before  us."  ^ 

8.  And  in  Perry  v.  Fitzhowe  the  court  held,  that,  if  a 
dwelling-house  constitutes  a  nuisance  to  a  commoner,  though 
he  might  abate  it  if  unoccupied,  he  might  not  do  so  while 

actually  occupied  by  a  family,  because  of  the  almost 
[*586]   *necessary  risk  of  life  and  breach  of  the  peace.     And 

it  would  seem,  moreover,  that,  if  the  nuisance  com- 
plained of  had  been  erected  by  another  person  than  the  occu- 
pant thereof,  the  party  thereby  injured  should  give  notice  to 
the  owner,  and  request  him  to  abate  it,  before  he  might 
actually  proceed  to  abate  it  himself.^ 

1  Amick  V.  Tharp,  13  Gratt.  567. 

2  Moffit  V.  Brewer,  1  Green,  Iowa,  348,  351.     See  Bract.,  fol.  233,  §  1. 

The  language  of  Bracton  is  :  "  Ea  vero  quae  sic  levata  sunt  ad  nocumentum 
injuriosuni,  vel  prostrata  vel  demollita  A'to/)>H  ci  recentei-  flagrante  malcflcio  (sicut 
aliis  disseysinis)  dernoUiri  possunt  ct  prosterni  vel  relevari  ct  reparari  si  quereus 
ad  lioc  suffioiat." 

»  Perry  v.  Fitzhowe,  8  Q.  B.  757,  776 ;  Davies  v.  Williaras,  16  Q.  B.  546,  556  ; 
Jones  V.  Williams,  11  Mees.  &  W.  176,  182. 


Sect.  4.]  REMEDY   BY   ABATEMENT   FOR   INJURIES.  679 

The  rules  upon  this  subject,  as  stated  by  writers  upon  the  ' 
French  and  civil  law,  may  be  briefly  alluded  to  in  this  con- 
nection, as  they  throw  light  upon  some  parts  of  the  common 
law. 

The  French  and  civil  law  apply  the  doctrine  of  prescrip- 
tion to  the  case  of  losing,  in  the  same  way  as  in  gaining,  a 
servitude,  with  the  exception  that,  by  the  Code  Napoleon, 
thirty  years  is  the  uniform  period  which  will  operate  to  ex- 
tinguish a  servitude  by  non-user.  Extinguishment  in  such 
a  case  rests  upon  a  presumed  abandonment  of  the  right. 
But  this  presumption  may  be  met  by  showing  that  the  cesser 
to  use  was  the  result  of  obstacles  thrown  in  the  way  of  such 
use  without  the  fault  of  the  owner,  which  had  rendered  the 
enjoyment  of  the  right  impossible.  By  the  Roman  law,  if 
the  enjoyment  of  a  servitude  were  suspended  by  obstacles 
which  the  owner  thereof  could  not  prevent,  it  revived  again, 
and  became  re-established,  when  the  premises  were  restored 
to  their  former  condition.  And  Lalaure,  a  French  writer 
of  high  authority,  illustrates  the  proposition  by  supposing 
three  tenements.  The  first  acquires,  by  grant  from  the 
third,  an  easement  of  view  in  favor  of  his  tenement  over 
and  across  that  of  the  third,  there  being  nothing  at  the  time 
upon  the  intermediate  estate  to  prevent  the  owner  of  the 
first  enjoying  this  right  of  prospect  across  the  third.  The 
owner  of  the  second  estate  then  erects  upon  the  same  a 
house  so  high  as  wholly  to  obstruct  the  view  of  the  first  in 
the  direction  of  the  third,  whereupon  the  third  erects 
a  *house  upon  his  estate  ;  and  this  state  of  things  [*587] 
continues  for  thirty-one  years,  when  the  interme- 
diate house  is  destroyed  by  fire.  The  owner  of  the  first 
then  insists  upon  his  right  of  servitude  of  prospect  over 
the  tliird  estate.  The  question  raised  is,  whether  this 
right  has  not  been  lost  by  cesser  of  enjoyment  for  thirty 
years.  Lalaure  and  Domat  insist  that  it  was  not  lost, 
the  obstacle  which  prevented  such  enjoyment  having  been 
interposed   by  the  act  of  a  third  party,  which  the  owner 


680  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  VI. 

could  not  control.  But  M.  Toullier  maintains  that  it  was 
laches  on  the  part  of  the  first  owner  in  not  having  obtained 
command  of  the  second  tenement,  so  as  to  enjoy  what  he 
had  purchased  of  the  third,  and  that  if  he  allowed  this  to 
continue  for  the  term  of  thirty  years,  he  would  lose  the 
right  by  prescription. ^ 

Abandonment  is  to  be  presumed  where  the  owner  of 
a  right  has  neglected  to  use  it  while  at  liberty  to  do  so. 
And  if  the  servitude  be  a  discontinuous  one,  like  that  of 
a  way  or  a  right  to  draw  water,  the  time  from  which  pre- 
scription runs  is  from  the  last  act  of  user  done  under  it.  If 
the  servitude  be  a  continuous  one,  like  that  of  eaves' 
drip  or  of  prospect,  the  time  of  prescription  runs  from  the 
doing  of  some  act  which  conflicts  with  the  right  of  servi- 
tude.2 

Where  the  interruption  of  the  enjoyment  of  a  right  of 
servitude  is  caused  by  the  act  of  God,  and  the  capacity  of 
enjoyment  is  again  restored,  that  the  right  will  revive  is  a 
doctrine  both  of  the  Roman  and  French  laws.  Thus,  where 
a  spring,  from  which  the  dominant  estate  drew  water  in 
the  servient  land,  became  dry,  and  after  a  lapse  of  years 
began  to  flow  again,  prescription  would  not  bar  the  right 
during  this  suspension.  So  where  the  servient  estate 
across  which  was  the  servitude  became  inundated  by  the 
waters  of  the  sea,  and  submerged,  and  after  a  course  of 
years  the  waters   receded   again,   the  same   principle   was 

applied. 3 
[*588]  *0n  the  other  hand,  if  one  own  a  house  with  a 
servitude  of  prospect  or  right  of  view  belonging  to 
it,  and  the  same  is  burned,  and  the  owner  of  the  adjacent 
estate  build  thereon  so  as  to  obscure  this  view,  and  after 
thirty  years  the  first  owner  rebuilds  his  house,  the  servitude 

1  3  Toullier,  Droit  Civil  Franrais,  524,  .526,  533 ;  Lalaure,  Traitc  des  Servi- 
tudes, 71,  72  ;  Domat,  B.  1,  tit.  12,  4  6,  Art.  4. 
-  3  Toullier,  Droit  Civil  Fram/ais,  528,  529. 
3  Ibid.  530  -  532. 


Sect.  4.]  REMEDY   BY   ABATEMENT    FOR   INJURIES.  681 

belonging  to  the  first  will  have  been  lost.  His  forbearing  to 
do  what  he  might  have  done  is  a  presumed  abandonment  of 
the  right.^ 

In  respect  to  what  acts  one  must  do  in  order  to  retain  his 
right  of  servitude,  and  prevent  it  being  barred  by  a  presumed 
abandonment,  several  rules  have  been  applied.  In  the  first 
place,  if  he  does  more  than  he  has  a  right  to  do  under  the 
servitude,  and  it  is  of  the  same  character  in  matter  and 
manner  with  what  he  has  a  right  to  do,  it  will  save  the 
servitude,  upon  the  ground  that  the  greater  always  contains 
the  less.  Thus  if  one  has  a  right  of  footway,  and  passes  in 
a  carriage,  or  has  a  right  to  water  five  cattle,  and  drives  ten 
to  the  spring  to  drink,  he  will  thereby  save  the  right  so  far 
as  it  lawfully  belongs  to  him.  On  the  other  hand,  if  the 
servitude  is  in  its  nature  separable  into  what  is  greater  or 
less  in  its  parts,  and  one,  possessed  of  the  greater,  use  only 
the  less,  for  the  period  of  prescription,  he  will  lose  the  excess 
over  and  beyond  what  he  has  during  that  time  exercised  and 
enjoyed.  If  one  has  a  right  to  draw  water  from  another's 
well  at  all  times,  both  in  the  day  and  night,  and  forbears  to 
use  it  during  the  night  for  thirty  years,  he  may  still  retain 
the  servitude  of  drawing  during  the  day,  but  lose  it  for 
other  periods.^ 

The  mode  of  using  a  right  of  servitude  often  becomes 
essential  in  determining  how  far  one  has  retained  it.  The 
civil  law  is  thus  stated :  "  Itaque  differentia  est  inter  aliud 
facere  et  plus  facere,  qui  aliud  facit,  servitutem  amittit  non 
utendo,  qui  plus  facit,  servitutem  non  amittit."  This  applies 
where  the  servitude  is  not  apparent  and  continuous, 
and  the  same  *is  exercised  in  a  manner  different  [*589] 
from  what  one  has  a  right  to  do.  In  such  case,  he 
loses  his  right  by  lapse  of  time.  He  did  not  do  what  he  had 
a  right  to  do,  but  something  else.  But  if  the  servitude  be 
apparent  and  continuous,  and  one  to  whom  it  belongs  exer- 

1  3  TouUier,  Droit  Civil  Franyais,  535. 

2  Ibid.  535,  536,  538 ;  Domat,  B.  1,  tit.  12,  §  6,  Art.  5. 


682  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Cn.  VI. 

cises  it  for  thirty  years,  but  in  part  only,  he  loses  the  right 
beyond  the  use  thus  made.  But  if  he  uses  and  enjoys  more 
than  he  has  a  right  to,  for  thirty  years,  he  acquires  thereby 
a  servitude  to  the  whole  extent  of  his  enjoyment.^ 

It  may  be  added,  that  it  is  not  necessary  that  the  owner  of 
the  servitude  should  himself  do  the  acts  requisite  to  retain  it 
by  user.  If,  for  instance,  it  be  a  right  of  way,  it  would  be 
sufficient  if  it  were  used  by  a  workman,  a  friend,  or  even  a 
stranger  in  making  a  visit  to  the  owner  of  the  servitude.^ 

And  it  may  be  further  remarked,  that  the  same  rule  ap- 
plies as  to  successive  owners  of  the  dominant  or  servient 
estate,  in  respect  to  losing,  as  in  acquiring,  easements.  The 
period  of  prescription  which  has  run  against,  or  in  favor  of 
a  former  owner,  will  be  added  to  that  of  his  vendee  or  suc- 
cessor, in  completing  the  requisite  period  to  gain  or  lose  the 
servitude.^ 

But  in  Davies  v.  Williams,  above  cited,  it  was  held  that, 
after  notice  and  demand  of  the  tenant  to  remove  the  house, 
the  owner  of  the  right  of  common,  with  which  the  house  un- 
lawfully interfered,  might  pull  it  down,  although  the  family 
of  the  tenant  were  actually  in  it  at  the  time.  But  the  case 
affirms  the  necessity  of  a  demand  and  notice  to  the  tenant  to 
remove  the  house,  before  proceeding  to  abate  it. 

The  court  had  previously,  in  Burling  v.  Reed,  taken  occa- 
sion to  limit  and  modify  the  doctrine  of  Perry  v.  Fitzhowe, 
in  which  case  the  plaintiff  owned  the  house,  by  saying,  that 
if  the  party  in  the  house  did  not  own  it,  and  was 
[*590]  a  stranger,  *  his  being  in  the  house  was  no  reason 
why  the  owner  of  it  might  not  do  what  he  liked 
with  it.* 

The  question  of  how  far  the  grantee  of  the  estate  that  is 
injured  may  avail  himself  of  his  right  of  abating  a  nuisance 

1  3  Toullier,  &c,  536  -  539. 
'■^  Pardessus,  Traite  des  Servitudes,  451,  465. 

^  Pardussus,  Traite  des  Servitudes,  451,  465  ;  3  Toullier,  Droit  Civil  Franyais, 
542;  Domat,  B.  1  tit.  12,  ^  6,  Art.  8. 
■»  Uurling  v.  Reed,  11  Q.  B.  904. 


Sect.  4.]  REMEDY  BY  ABATEMENT   FOR  INJURIES.  683 

upon  the  land  of  another  which  was  erected  by  the  grantor 
of  the  latter  estate,  is  settled  in  Penruddock's  case,  where  it 
was  held  that  in  such  a  case  the  owner  of  tlie  former  estate 
must  notify  the  owner  of  the  latter  to  remove  it,  unless  it  be 
immediately  dangerous  to  life  and  health ;  and  if  he  do  not 
remove  it,  the  former  may  proceed  to  abate  it  himself  in  the 
same  manner  as  his  grantor  might  have  done  against  tlie 
grantor  of  the  other  estate,  and  that  he  need  not  wait,  be- 
fore so  doing,  till  he  shall  have  actually  suffered  prejudice 
by  the  erection  which  causes  the  nuisance.^ 

In  the  case  of  Salmon  v.  Bensley  the  court  held,  that  an 
action  would  lie  against  a  tenant  for  continuing  a  nuisance, 
if  his  immediate  predecessor  had  been  notified  to  remove  it. 
"  I  am,"  says  Abbott,  C.  J.,  "  of  opinion  that  a  notice  of  this 
nature,  delivered  at  the  premises  to  which  it  relates,  to  the 
occupier  for  the  time  being,  will  bind  the  subsequent  occu- 
pier. And  that  a  person  who  takes  premises  upon  which  a 
nuisance  exists,  and  continues  it,  takes  them  subject  to  all 
the  restrictions  imposed  upon  his  predecessors  bj^  the  receipt 
of  such  a  notice."  ^ 

9.,  The  abatement  of  a  nuisance,  moreover,  does  not  oper- 
ate as  a  bar  to  an  action  for  the  recovery  of  damages  occa- 
sioned thereby  prior  to  such  abatement.'^ 

The  law  on  this  subject  may  be  summed  up  in  the  lan- 
guage of  Blackstone :  "  A  fourth  species  of  remedy  by  the 
mere  act  of  the  party  injured  is  the  abatement  or  removal 
of  nuisances.  Whatever  annoys  or  does  damage  to  another 
is  a  nuisance ;  and  such  nuisance  may  be  abated, 
that  is,  *  taken  away  or  removed  by  the  party  ag-  [*591] 
grieved  thereby,  so  as  he  commits  no  riot  in  the 
doing  of  it.  If  a  house  or  wall  is  erected  so  near  to  mine 
that  it  stops  my  ancient  lights,  which  is  a  private  nuisance, 
I  may  enter  my  neighbor's  land  and  peaceably  pull  it  down. 

1  Penruddock's  case,  5  Rep.  101  ;  Jones  v.  Williams,  11  Mecs.  &  W.  176. 

2  Salmon  v.  Bensley,  Ry.  &  M.  189. 
8  Call  V.  Buttrick,  4  Cusii.  345. 


684  THE   LAW   OF   EASEMENTS   AND   SERVITUDES.         [Ch.  VI. 

And  the  reason  why  the  law  allows  this  private  and  sum- 
mary method  of  doing  one's  self  justice  is  because  injuries  of 
this  kind,  which  obstruct  or  annoy  such  things  as  are  of 
daily  convenience  and  use,  require  an  immediate  remedy, 
and  cannot  wait  for  the  slow  progress  of  the  ordinary  forms 
of  justice."  ^ 

1  3  Black.  Com.  5. 


INDEX. 


A. 
ABANDONMENT, 

effect  of  exchano^e  as  to,  on  rights  of  way,  258-263,  633. 

what  constitutes  an  act  of,  of  an  easement,  631,  G32,  634,  639. 

the  party  must  intend  it,  or  another  be  misled  by  it,  632,  634. 

is  a  question  for  the  jury,  633,  239,  645. 

what  amounts  to,  of  a  mill-privilege  or  power,  414,  634,  637  -  639, 

646,647.  (See  Mill  Laws.) 

what  would  be  of  a  way,  635,  636,  637. 
what  would  be  of  the  right  of  light,  634  -  636. 
how  far  inferred  from  non-user,  636,  639  -648. 
by  neglecting  to  restore,  when  user  lost  by  accident,  638. 
what  would  be  of  an  aqueduct,  641. 
no  length  of  non-user  is,  if  gained  by  grant,  641. 
whether  non-user  is,  of  what  was  gained  by  user,  644  -  646. 
when  riparian  owner  must  inquire  before  presuming  one,  648. 
distinction  between  and  an  interruption  by  license,  652. 
whether  tenant  for  life  can  by  it  affect  reversioner,  414. 
right  suspended  by  act  of  God,  is  not  one,  638. 
right  may  be  destroyed  by  changes  in  the  estate,  639. 
whether  one  can  exercise  it  to  the  injury  of  another,  389. 
can  only  be  made  by  one  having  disposing  power  over  the  estate,  414. 
ABATEMENT, 

in  what  it  consists  as  applied  to  private  nuisances,  675. 

right  of,  limited  by  what  is  necessary,  675,  676. 

may  not  be  done  by  causing  a  nuisance  to  a  stranger,  6  78. 

when  an  entire  cause  of  a  partial  nuisance  may  be  abated,  677. 

applied  to  causing  water  to  injure  lands  or  mills,  365. 

how  far  applicable  to  an  excessive  use  of  water,  366,  676. 

mill-owner  may  abate  a  dam  that  flows  upon  his  mill,  408. 

owner  of  ancient  windows  may  abate  what  darkens  them,  676. 

in  what  cases  owner  must  wait  till  actually  injured,  676,  677. 

within  what  time  the  right  must  be  exercised,  6  78. 

when  not  to  be  exercised,  until  after  notice  given,  678,  682. 

notice  to  one  tenant  binds  his  successor,  683. 

how  far  a  dwelling-house  may  be  abated  when  a  nuisance,  678,  682. 


686  INDEX. 

ABATEMENT,  Continued. 

if  exercised,  is  no  bar  to  an  action  for  prior  damages,  G83. 

in  what  cases  equity  decrees,  it,  670,  671. 

statutory  provisions  for  abating  nuisances,  074. 
ABUSE 

of  an  easement  does  not  work  extinguishment,  627. 
ACCEPTANCE, 

necessary  to  give  effect  to  dedication,  180,  208. 

a  different  rule  for  squares  and  streets,  205. 

how  made  and  how  established,  189  -  200,  202,  203. 

what  user  may  be  evidence  of,  189,  191. 

may  be  a  partial  one,  to  a  dedication,  188. 
ACCESS, 

means  of,  as  used,  passes  with  land,  74. 
ACCIDENT, 

party  not  responsible  for  effect  of,  362. 
ACCRETION, 

rights  of  owners  as  to,  392,  393. 
ACQUIESCENCE, 

by  owner  necessary  to  give  easements,  105,  124,  152,  154,  155,  158. 

by  owner  in  dedication  when  presumed,  184. 

negative,  if  owner  objects  to  the  user,  154,  155. 

effect  of,  in  a  change  in  the  natural  current  of  a  stream,  392. 
ACTION  AT  LAW, 

lies  for  unreasonable  use  only  of  water,  282,  304. 

lies  for  injury  to  a  right  though  no  damage,  282,  295,  569. 

when  the  only  remedy  for  injury  to  mills,  366. 

when  trespass  will  not  lie  for  obstructing  watercourse,  376. 

for  injury,  whether  it  waits  till  damage  arises,  560. 

at  common  law,  taken  away  by  mill  laws,  402. 

lies  only  for  legal  or  appreciable  damages,  330. 

lies  for  disturbance  of  easements,  9,  287,  662. 

any  one  in  possession  may  bring  for  an  injury  done,  662. 

tenant  at  will  may  have,  for  disturbance  of  easement,  662. 

case  and  not  trespass  the  form  of,  661. 

ejectment  will,  not  lie  to  try  title  to  easement,  663. 

for  injury  to  watercourse,  local,  661. 

a  reversioner  may  sue  for  injury  to  the  inheritance,  662,  663. 

who  liable  to,  for  creating  or  continuing  a  nuisance,  663  -  665. 

of  trespass  qu.  cl.  lies  for  entering  a  pew,  604. 

for  nuisance  not  barred,  by  abating  it,  683. 
{See  Remedy,  &c.) 
ACT  OF  GOD, 

effect  if  easement  destroyed  by,  625,  638. 

if  it  ceases  to  operate,  easement  revives,  638,  680. 


INDEX.  687 

ACTUS, 

■what  is  a  servitude  of,  at  the  civil  law,  216. 
ADITUS, 

an  easement  by  the  civil  law,  216. 
AD  QUOD  DAMNUM, 

writ  of  when  applied,  422  -  426. 

what  is  determined  under,  422. 

used  to  prepare  for  erection  of  mills,  422  -  426. 
ADVERSE  USER, 

in  what  it  consists,  124  -  136. 

must  be  an  invasion  of  a  right,  130,  131,  133,  284. 

it  may  be,  though  upon  unenclosed  lands,  130. 

must  be  known  to  be  adverse,  128. 

may  become  so,  though  begun  by  permission,  127. 

not  always  so,  though  without  permission,  127. 

unexplained  for  twenty  years,  presumed  to  be,  129,  135. 

generally  is,  if  applied  whenever  one  wishes,  130. 

whether  it  is,  depends  upon  intention,  132,  134,  284. 

is  of  no  avail  as  to  title,  if  owner  cannot  resist,  156. 

distinction  as  to,  between  easements  and  lands,  155. 

does  not  affect  reversioner  or  remainder  man,  156. 

how  far  it  may  be  in  artificial  watercourses,  372,  373,  379. 

when  it  may  be  in  another's  trench,  in  one's  own  land,  379. 

when  it  may  extinguish  a  dedication,  211,  212. 

different  rules  as  to  flowing  in  Maine  and  Massachusetts,  405, 41 7,  418. 

may  be  as  to  excess,  though  permissive  in  part,  134. 
AFFIRMATIVE 

servitudes  and  easements,  what  are,  15,  18,  379. 
AGENT, 

cannot  gain  a  prescription  against  his  principal,  150,  151. 
"  AGRICULTURAL  PURPOSES," 

way  for,  how  used,  243. 
AIR, 

easement  of  (See  Light,  &c.),  574  -592. 
ALLUVION, 

rights  of  owners  occasioned  by,  393. 
"ALL  WAYS" 

in  grants,  its  effect  to  pass  easements,  165. 
ALTERATION 

in  condition  and  use,  &c.     (See  Change.) 
ANCIENT  MILL, 

how  far  rights  of,  depend  on  being,  317,  320,  383. 
right  of,  limited  to  its  actual  enjoyment,  316,  332. 
no  right  of  action,  though  injured  by  reasonable  use  of  other  mills, 

317,  330, 
when  to  be  alleged  as  such  in  actions  for  injuries  to,  383. 


688  INDEX. 

APPARENT, 

■what  servitudes  are,  1 7. 

easements  warranted  in  La.  by  implication,  60. 

only  such  pass  with  principal  estate,  65. 
APPURTENANCES, 

in  grants  create  no  new  easement,  49,  50,  74. 

they  pass  with  grant  of  principal  estate,  32,  33,  82. 

when  they  pass  with  grants  of  parts  of  estates,  32,  85,  86. 

effect  of  "  all  ways,"  &c.,  in  creating  appurtenances,  50. 

what  pass  as  such  upon  dividing  heritages,  73,  74,  82,  83,  CI 7. 

what  will  be  reserved  as,  in  granting  one  of  two  estates,  82,  83. 

may  be  of  one  easement  to  another,  31. 

lands  never  can  be  to  other  lands,  39,  89. 
APPURTENANT  AND  APPENDANT, 

what  easements  are,  10,  29,  32,  49,  54,  81,  217. 

ways  must  inhere  in  the  land  and  be  necessary  to  its  enjoyment,  217. 

apply  to  such  as  are  acquired  by  implication,  29. 

to  be  created  by  deed,  must  belong  to  the  estate  granted,  30,  39,  49, 
217. 

one  easement  may  become  such  to  another,  31. 

easements  not  severable  from  the  principal  estate,  33. 

ways  may  be  granted  and  reserved  in  same  deed,  28. 

easement  may  be  raised  by  grant  out  of  grantee's  estate,  28. 

such  easements  pass  with  the  principal  estate,  32,  39,  78,  89,  591. 

only  existing  easements  pass  as  such,  10,  33,  39,  47,  49,  50,  615. 

when  "  appurtenances"  necessary  to  carry  easements,  32,  50. 

such  easements  pass  with  every  part  of  the  estate,  33,  85,  86,  591. 

but  do  not  pass  to  increase  the  burden,  33,  86. 

will  pass  though  not  necessary  to  enjoyment,  72. 

will  not  be  reserved  by  implication  unless  necessary,  82,  83,  89. 

one  parcel  of  land  never  passes  as  such  to  another,  39,  89. 

when  an  easement  ceases  to  be,  by  change  of  estate,  88. 

no  easement  appurtenant  where  one  owns  both  estates,  49. 

none  will  pass  in  such  case  except  by  express  grant,  49. 

ways  of  necessity,  how  far  appurtenant,  220. 

what  are  made  such  by  reviving  on  grant  of  one  of  two  estates,  614, 
617. 

an  artificial  watercourse  may  become  so  to  a  mill,  381. 

aqueduct  becomes  so  on  dividing  estates,  386,  616. 

distinction  between  natural  and  artificial  rights  as  to  being,  387, 
616. 

after  it  is  extinguished  by  unity,  a  way  ceases  to  be,  616. 

easements  cease  to  be,  by  unity  of  estates,  615. 
APPORTIONMENT, 

of  right  of  common,  599,  600. 


INDEX.  689 

APPROPRIATION, 

of  water  power,  315-322,  410-412. 

(^'ee  Occupation.) 
AQUA  CEBIT  SOLO, 

when  maxim  applies,  392,  393. 
AQUA  CURRIT,  &c., 

maxim  how  applied,  275. 
AQUiE  DUCEND.E, 

and  aqucB  hauriendce,  by  the  civil  law,  503,  504. 
AQUA  HAUSTUS, 

a  Scotch  servitude,  425. 
AQUEDUCT, 

a  right  of,  an  interest  in  land,  13. 

right  of  an  incorporeal  hereditament,  376. 

a  rural  service  by  the  civil  law,  15,  503. 

may  be  gained  by  prescription,  378. 

is  a  subject  of  custom,  13. 

may  be  granted  and  reserved  as  realty,  11-13. 

if  once  fixed  by  user  as  to  place,  not  to  be  changed,  225. 

when  pipes  of  may  be  changed  by  parol  agreement,  390,  391. 

others  may  have  easements  in,  165,  167,  379. 

when  they  pass  with  principal  estate,  63,  70,  77,  386. 

how  far  must  be  necessary,  to  be  reserved  by  implication,  84,  85. 

if  severed  by  owner  of  two  estates,  does  not  pass,  387. 

right  of,  by  Scotch  law,  505. 

effect  of,  whether  the  supply  is  natural  or  artificial,  367-  378. 

whether  it  passes  upon  dividing  heritages,  84,  85. 
ARRANGEMENT, 

and  use  of  estates  which  imply  easements,  60,  61,  76. 

must  be  made  by  owners,  tenants  cannot  make  them,  60,  61. 

none  such  implied  by  reservation  as  to  discontinuous  easements,  59, 
62,  63. 

applied  as  to  support  of  houses,  granted  or  reserved,  63. 

applied  to  aqueducts,  by  grants  and  reservations,  63,  84. 

to  have  such  an  easement  implied,  it  must  be  apparent,  65. 

applied  to  separate  parcels  of  swamp  with  drains,  73,  130. 

applied  to  lots  in  cities,  with  streets  and  alleys,  74. 

if  parcels  are  sold  in  reference  to,  premises  may  not  be  changed,  76. 

in  grants,  reference  is  had  to,  as  they  then  exist,  76,  79,  620,  621. 

made  by  owners  of  houses  as  to  street,  is  not  a  dedication,  95. 
ARTIFICIAL  WATERCOURSE, 

how  distinguished  from  natural,  274,  367,  374,  375,  381. 

two  classes  of,  and  how  distinguished,  368. 

how  far  they  have  the  qualities  of  natural  streams,  370,  371,  377, 
383,  384. 

44 


690  INDEX. 

ARTIFICIAL  WATERCOURSE,  Continued. 

intermediate  riparian  owners  may  not  divert,  370,  371', 

owner  of  supply  of,  may  not  foul  it,  370,  371,  373. 

in  what  cases  owner  of  source  may  stop  supply,  3G9  -  371. 

when  a  lower  owner  may  claim  a  right  to  walers  of,  387. 

when  owner  of,  may  not  increase  its  flow,  388. 

when  owner  of,  may  not  change  to  injury  of  one  below,  389,  390. 

how  far  owner  may  cease  to  use  to  the  injury  of  one  below,  389, 
390. 

owner  of  a  ditch  may  change  its  level,  &c.,  in  his  own  land,  371. 

no  prescription  to  receive  water  from  an  artificial  source,  372. 

may  be  of  drawing  water  through  artificial  channels,  374  -  379. 

a  right  to  draw  by,  in  another's  land,  an  incorporeal  one,  376. 

trespass  does  not  lie  for  stopping  one  in  another's  land,  376. 

easement  may  be  gained  in  one,  in  one's  own  land,  379. 

where  one  becomes  a  substitute  for  a  natural  stream,  384,  385. 

when  they  have  the  rights  of  natural  streams,  383  -  386. 

rights  in,  may  be  limited  by  terms  of  the  grant,  386. 

when  the  right  of  aqueduct  passes  with  an  estate,  386. 

if  severed  by  the  owner  of  the  two  estates,  it  does  not  pass,  387. 

law  of,  in  respect  to  mining  in  California,  380. 
{See  Watercourses.) 

may  be  acquired  by  prescription  in  what  cases,  293,  356,  372,  374, 
379,  386. 

right  of  mill-owner  to  clear  those  below  him,  377,  381. 

action  lies  for  obstructing  one  to  another's  injury,  293. 
ASSIGNEE, 

of  tenant  of  a  nuisance  bound  by  notice  to  former  tenant,  682,  683. 
ASSIGNMENT, 

of  an  estate  carries  its  easements,  32,  39,  78,  85,  86,  591. 
AVULSION, 

right  of  parties  if  it  happen  to  land,  392,  393. 

when  owner  must  exercise  his  rights,  393. 


B. 

BANKS  OF  RIVERS, 

public  by  civil  law  and  the  Partidas,  507. 

how  far  public  in  Louisiana  and  Missouri,  506,  507. 

law  as  to  being  boundaries  of  land,  479  -482.         # 

how  far  the  public  may  use  them,  482  -484. 
BARGAIN  AND  SALE, 

whether  easement  can  be  gained  by,  28. 
BARS  AND  GATES, 

when  land-owner  may  maintain  across  a  way,  252,  253. 


INDEX.  691 

BATHING, 

in  ponds,  or  streams,  or  the  sea,  as  an  easement,  490. 

if  once  gained  may  be  extinguished  by  erecting  buildings,  490. 
BEAM, 

of  a  house,  right  to  support,  a  servitude,  15,  536. 
BOGGY 

places,  rules  as  to  water  in,  435. 
BONITARTAN  OWNERSHIP, 

what  is,  100. 
BONUM  VACANS, 

how  far  water  is,  275,  280. 
BOUNDING  LAND, 

by  a  way  or  contemplated  way,  effect  of,  227-  231. 
BRIDGE, 

who  to  maintain  across  a  watercourse,  255. 

when  grant  of  right  of,  is  grant  of  a  way,  240. 

who  liable  for  obstruction  caused  by,  289. 
BROOK, 

what  is  meant  by,  267. 
BUILDING, 

on  another's  land,  right  of,  not  a  good  prescription,  121. 
BUILDINGS.         {See  Support  of  Houses  and  Party  Walls.) 
BURIAL 

rights  in  church-yards,  easements  of,  604. 


C. 

CANAL, 

^  right  to  dig,  how  far  it  carries  materials  of,  39,  254. 
CARE, 

what  is  to  be  used  in  exercise  easement  of  water,  280,  317,  458,  459. 

in  digging  in  soil,  taking  down  houses,  &c.,  what  required,  518-524. 
526-530. 

in  repairing  party  walls,  what  to  be  used,  541. 

in  abating  a  nuisance  to  one's  property,  6  75. 
CARRIAGE 

way,  what  included  in  right  of,  216,  243. 

when  implied  in  the  nature  of  the  grant,  231. 
CASE, 

action  of,  the  form  for  injuries  to  easements,  661. 
CAUSE, 

remote  and  immediate  of  damage,  rule  as  to,  364. 
CHANCERY, 

resort  to  for  remedy. 

{See  Remedy,  &c.) 


692  INDEX. 

CHANGE, 

inestates,  how  it  affects  easements,  88, 148,  622-626,  628-631,  637. 

in  the  use  of  water,  its  effect  on  easements,  144,  145,  147,  357  -  361. 

in  the  use  of  a  way,  does  not  affect  easement  unless  material,  144, 148. 

it  does  if  it  is  material,  144. 

effect  of,  if  from  natural  causes,  361,  392. 

what  is  sufficient  to  destroy  an  easement,  145,  627,  629. 

effect  of,  in  ownership  of  dominant  estates,  148. 

what  an  owner  may  make  in  channel  of  a  stream,  334,  360,  361,  388. 

of  fulling  to  a  corn-mill,  &c.,  does  not  affect  easement,  628. 

rights  gained  by,  become  like  natural  rights,  647,  648. 
CHARACTER, 

of  a  way,  how  far  determined  by  user  of,  109,  110. 
CIVIL  LAW, 

as  applied  to  servitudes,  9. 

how  it  classified  servitudes,  15. 

rules  of,  not  binding  on  common-law  courts,  15. 

referred  to  by  American  courts,  15. 

what  are  servitudes  by,  as  to  water,  502  -  510. 

what  of  support  of  houses,  "  oneris  ferendi"  531  -  536,  656. 
CLAIM, 

of  right  essential  in  gaining  easements,  124,  136. 

not  available  unless  accompanied  by  acts,  124,  134. 
CLAM, 

if  enjoyment  is,  it  gains  no  prescription,  122,  153  -  155. 
CLANDESTINE  USER, 

gains  no  prescriptive  right,  153  -  155. 
CLEANSING 

channels  and  tail-races  to  mills,  rights  of,  356,  377,  378.  ^ 

CLOTHES  LINE, 

right  of  support  of,  an  easement,  596. 
COAL- SHOOT, 

in  use,  right  of  passes  as  appurtenant,  79. 

right  to  take,  an  easement,  a  vein  of,  not,  121. 
CODE 

Napoleon,  what  are  servitudes  bj',  16,  472,  506,  550-556,  5G9. 

civil,  of  Louisiana,  what  are  servitudes  by,  17,  160,  506-507,  513. 
COMMON  TENANTS  IN, 

user  by  one  not  adverse  to  others,  135. 

one  cannot  create  easements  in  the  common  estate,  37,  38,  222. 

one  may  acquire  easement  for  his  co-tenant,  38. 

one  cannot  dedicate  common  property,  180. 
(.See  Pautition.) 
COMMON 

rigiit  of  an  easement,  3,  598. 


INDEX. 


693 


COIMMON,  Conlinuerl. 

how  for  applicable  to  this  country,  598,  599. 

how  it  may  be  apportioned  or  extinguished,  GOO. 
COMMON  FISHERY, 

what  is,  498-500.         (See  Fisheky.) 
CONCURRENCE, 

of  owners  of  both  estates  to  create  easements,  36. 
CONDITION, 

of  estates  to  each  other,  reference  to,  as  to  easements,  GO,  79,  81, 
620,  621, 

so  in  grants,  referred  to  in  fixing  rights,  76,  83,  230-237,  244,  245. 

how  far  change  in,  may  destroy  original  rights,  75,  76. 

how  far  change  in,  may  destroy  easements,  88,  148,  384,  385,  622  - 
627. 

easements  may  be  granted  upon,  35. 

effect  of  a  breach  of,  on  land  and  easement,  36. 

of  streams  a  test  of  a  reasonable  use,  302,  335,  336. 

of  a  stream  when  granted,  shows  what  is  conveyed,  384,  385. 

of  an  estate  when  granted,  defines  how  it  is  to  be  used,  620,  621. 
CONDITIONAL 

estate,  when  it  will  not  sustain  prescription,  159,  607  -610. 
CONFUSION, 

what  it  is  by  French  law,  606. 
CONSTITUTIONALITY 

of  mill  laws,  how  far  settled,  396  -  402. 
CONSTRUCTION, 

when  grants  of  easements  made  by,  27. 

when  reservations  made  by,  27. 

by  what  rules  of,  easements  governed,  35. 
CONTENTIOUS 

user  and  enjoyment  will  not  gain  an  easement,  155. 
CONTERMINOUS 

owners,  their  rights  as  to  surface  water,  268,  271,  272,  288. 

their  rights  in  dedicated  streets,  &c.,  187,  190,  194. 
CONTINUANCE 

of  a  nuisance  the  ground  of  an  action,  663,  666. 
CONTINUOUS  FLOWING, 

when  the  test  and  limit  of  easement,  146. 
CONTINUOUS   SERVITUDES 

and  easements,  what  are,  17,  140,  506. 

pass  upon  dividing  heritages,  59.  ' 

user  necessary  to  create  prescription,  140. 

what  is  such  a  user  and  enjoyment,  140  -  142. 

what  is,  as  defined  by  Bracton,  141,  n. 

how  far  change  in  use  breaks  the  continuity,  144,  148. 


694  INDEX. 

CONTINUOUS  SERVITUDES,  Continued. 

effect  of  break  in  enjoyment,  on  prescription,  150. 

how  far,  if  occupants  are  successive  in  enjoyment,  148,  150,  151. 

user  by  ancestor  and  heir  is  continuous,  148,  149. 

interruption  breaks  the  continuity,  141,  157. 

mere  suspension,  not  an  interruption,  141,  147. 
CONVEYANCE 

of  easements,  how  made,  28. 

of  estates  carries  easements  belonging  to  same,  76  -  85,  612  -  621. 
does  not  arrest  an  easement  by  prescription,  149. 
CORPORATIONS, 

local,  to  have  charge  of  dedicated  squares,  &c.,  210. 

may  prescribe  for  easements,  119,  171. 
COVENANT, 

easements  created  by,  34,  90-97. 

may  carry  easement  though  not  running  with  land,  97. 

as  to  way,  by  referring  to  it  in  deed,  226,  229,  246. 
CRICKET, 

playing  at,  a  lawful  custom,  114. 
CUL-DE-SAC, 

use  of,  when  opened  to  the  public,  181. 

how  far  a  subject  of  dedication,  1 76. 

made  by  one,  not  to  be  changed  by  another,  206. 
CULINARY  PURPOSES, 

use  of  water  for,  308. 

when  it  becomes  a  precedent  right  of  water,  285  -  289. 
CURIA  CLAUDENDA, 

writ  of,  when  applicable,  603. 
CUSTOM, 

who  may  claim  easement  by,  4,  7,  111,  120,  488. 

must  be  the  people  of  a  locality,  not  a  whole  state,  7,  115,  485. 

persons  must  be  certain  who  claim  by,  115,  116. 

how  distinguished  from  prescription,  111-114, 116, 120, 173,489,490. 

what  may  be  claimed  by,  7,  74,  489. 

must  be  certain  in  respect  to  what  is  claimed,  115,  116. 

must  be  reasonable,  to  be  valid,  112,  114,  120. 

"what  easements  are  good  by,  116,  489. 

does  not  extend  to  profits  a  prendre,  7,  112,  116,  488,  489. 

does  not  justify  extending  windows  over  a  street,  115. 

wlien  established,  no  one  can  release  or  extinguish,  114. 

how  the  force  of  local  law  as  to  rights,  113. 

one  may  claim  by,  or  by  prescription,  119,  490. 

of  bathing  in  streams,  or  the  sea,  a  good  one,  490. 

rights  by,  in  use  of  water,  like  easements,  488  -490. 

right  of  a  public  landing-jDlace  upon  a  stream,  116,  485,  486. 


INDEX.  695 

CUSTOM,  Continued. 

does  not  imply  grants,  or  grantees,  111,  174. 
docs  not  extend  to  deposit  goods  on  banks  of  streams,  485,  486. 
right  to  bathe  in  sea  docs  not  give  a  right  to  pass  over  lands,  490. 
custom  to  bathe  lost  by  its  becoming  a  public  place,  490. 
origin  of  claim  need  not  be  shown,  111,  113. 

D. 

DAMAGES, 

law  implies,  for  an  injury  to  a  right,  282,  295,  659. 

when  to  be  appreciable,  to  support  an  action,  330. 

for  flowing  land,  may  be  released  by  parol,  406. 

parol  release  of,  does  not  bind  successors,  406. 

remedy  for,  at  common  law,  taken  away  by  mill  laws,  402. 

whether  action  for  injury  must  wait  till  damage  arises,  560. 
DAM.  (See  Mills,  &c.) 

Head  servitude  of,  in  Scotland,  505. 
DAMNUM  ABSQUE  INJURIA, 

when  it  applies,  298,  410,  445,  457,  515,  521,  527. 
DEATH, 

of  servient  owner,  effect  on  prescription,  148,  151,  156,  159-163, 
166. 

whether  it  suspends  it  as  to  minor  heirs,  149,  151,  156,  159-  163,  166. 

does  not  suspend,  if  heir  is  of  age,  159. 

of  owner  of  dominant  estate,  effect  on  prescription,  148. 
DE  DOMO  REPARANDA, 

writ  of,  when  it  lies,  567,  568. 
DEED, 

when  necessary  to  create  easement,  6,  23. 

when  the  existence  of  one  inferred  from  user,  24,  25,  102,  108. 

no  profert  of,  in  pleading,  required  after  time  of  prescription,  102. 
DEDICATION, 

doctrine  of,  a  modern  one,  1 78. 

in  what  states  adopted,  178,  179. 

what  are  subjects  of,  175,  186,  209,  484-486. 

what  are  requisites  to  make  it,  179  -  188. 

can  only  be  made  by  owner  of  the  fee,  175,  180. 

of  wife's  land  by  act  of  husband  and  wife,  180. 

does  not  require  a  person  to  take,  1 74,  1 75. 

is  made  to  the  public,  175,  176,  184,  188,  206. 

how  ffir  it  can  be  made  to  private  use,  175,  192. 

may  be  to  a  town  or  corporation  before  created,  174,  188. 

may  be  for  special  uses,  184,  185,  189. 

for  religious  purposes  by  civil  law,  185. 

how  far  good  if  a  part  of  the  public  only  use,  187. 


696  INDEX. 

DEDICATION,  Continued. 

for  what  purpose  may  be  made,  176,  209. 
to  create,  the  owner  need  not  part  with  the  fee,  18C,  196,  209. 
can  only  be  by  and  with  intent  of  owner,  180,  182  - 185,  205,  206. 
may  be  by  a  single  act,  requires  no  deed,  180,  182,  187,  188,  190, 

209. 
often  infeired  from  acquiescence  of  owner,  184. 
of  streets,  squares,  &c.,  by  laying  out  towns,  195-197,  201,  202. 
by  plans  of  towns,  &c.,  not  complete  till  sales  made,  176,  202. 
how  far  it  may  make  a  highway  of  a  cul-de-sac,  176,  206. 
always  originates  from  a  voluntary  donation,  180. 
distinction  between  and  license,  207. 
not  implied  from  open  spaces  near  a  house,  184,  207,  487. 
negatived  by  erection  of  gates,  &c.,  180,  181,  183,  190. 
private  arrangement  of  estates  on  a  street  is  not,  95. 
by  open  use  of  a  way,  not  unless  accepted,  182,  183. 
of  public  squares  governed  by  common  law,  205,  208. 
none  effectual  till  accepted,  180,  188-191,  202,  203,  208. 
•what  is  evidence  of  a  requisite  acceptance,  189,  191,  194,  197  -  200, 

202-204,  208. 
what  length  of  time  requisite  to  make,  188-191,  199, 
may  be  a  partial  or  limited  acceptance  of,  189. 
how  distinguished  from  prescription,  175,  177,  187. 
effect  of,  upon  rights  of  owner  of  soil,  186,  209. 
may  be  revoked  before  acceptance,  188. 
when  made  and  accepted,  it  is  irrevocable,  188,  195,  196. 
private  rights  in  what  is  made  to  the  public,  187. 
what  are  such  by  acts  of,  if  not  in  fact  a  dedication,  176,  190-  195.' 
selling  lots  on  private  streets,  effect  of,  176. 
when  owner  of  public  square  may  revoke  or  not,  200,  201,  208. 
public  take  the  land  in  its  then  condition,  210. 
when  of  quays  on  rivers,  what  rights  pass,  186,  207,  484,  485. 
when  of  lands  to  state,  county,  &c.,  what  rights  in,  208. 
who  to  have  charge  of  public  squares,  &c.,  210,  211. 
may  be  lost  by  non-user,  212. 
may  be  barred  by  adverse  enjoyment,  211,  212. 
of  way,  when  accepted,  makes  it  a  highway,  194,  195. 
if  purposes  of,  are  abandoned,  it  is  lost,  200. 
when  use  of  ways  as  public  dedicates  them,  1 74. 
distinction  between  and  custom,  485. 

may  be  of  a  public  landing-place  on  streams,  &c.,  485,  486. 
rights  in  private  owners  from  acts  like  those  of  dedication,  191, 192- 

194,  585. 
DENIAL 

of  occu[)ant's  right  defeats  prescription,  155. 


INDEX.  697 

DEPOSITING 

bales  and  boxes,  and  swinging  shutters  for  stores,  595,  596. 

wood,  &c.,  a  subject  of  prescription,  not  of  custom,  114. 

can  only  be  claimed  in  a  que  estate,  115. 
DEROGATE, 

one  may  not  from  his  own  grant,  45,  75,  78,  518,  579. 

whether  this  applies  to  the  matter  of  light,  584. 
DESCENT 

of  estates,  how  far  it  afiects  accruing  casements,  149, 151,  159  -  163, 
166. 
DESTINATION  DU  PERE  DE  FAMILLE, 

what  is,  20,  21,  56,  80. 

what  services  grow  out  of  this,  21,  56,  80. 

doctrine  of,  denied  in  England,  22,  62. 

how  far  adopted  in  the  United  States,  57. 

apply  only  to  such  ways  as  are  necessary,  80. 

its  application  to  cases  of  severance  of  heritages,  21,  54,  80. 
DETERMINABLE  FEE, 

if  defeated,  defeats  prescription,  149,  607. 
DETENTION 

of  water,  when  mill-owner  may  make,  336,  338. 
DIGGING  STONES,  &c., 

right  of,  may  be  gained  by  a  town,  601. 

may  be  held  in  trust  for  others,  601. 

and  carrying  away  ore,  596. 
DISABILITY 

of  owner  what  prevents  gaining  a  prescription,  156,  159  -  16S. 

has  no  effect  if  assumed  after  prescri2)tion  begins,  156. 
DISCHARGE  OF  WATER, 

right  of,  by  mills,  291,  334. 

right  of,  of  land-owners,  288  -  292. 

in  an  artificial  channel  or  pipe,  378. 

in  eaves' drip,  378,  468-471,  503. 

from  one  mine  into  another,  449. 

(See  Eaves'  Drip,  Mixes.) 
DISCONTINUANCE 

of  a  private  way,  what  amounts  to,  635,  637. 
DISCONTINUOUS 

easements,  what  are,  17,  62,  506. 

do  not  pass  on  dividing  heritages,  59. 

do  not  revive  on  conveying  one  of  two  estates,  80,  619. 
DISTANCES 

of  building,  digging,  planting,  &c.,  by  civil  and  Greek,  &c.,  law,  513. 
DITCH, 

right  to  stop,  an  easement  gained  by  user,  134. 


698  INDEX. 

DITCH,  Conlinued. 

what  is  meant  by,  and  what  it  includes,  267. 

when  it  has  the  rights  of  a  natural  stream,  73. 

use  of  for  twenty  years  presumed  adverse,  129. 
DISPOSITIONS 

of  estates.  {See  Dividing  Heritages.) 

DISTURBANCE 

of  easements.  (See  Nuisance.) 

DIVIDING  HERITAGES, 

effect  in  creating  easements,  20  -  22,  41,  42,  54  -  73. 

carries  benefits  and  burdens  with  the  several  parts,  55,  75,  76,  84,  85. 

rule  as  to  easements  passing  with  parts  of  estates,  59,  82-84,  86,  88. 

how  far  limited  to  what  is  necessary,  57,  74,  78  -  83. 

how  far  depends  on  being  continuous  and  apparent,  55,  81. 

effect  of  partition  of  estate  as  to  passing  easements,  41,  82,  84. 

difference  in  effect  upon  part  being  granted  or  reserved,  82. 

rule  as  to,  in  Louisiana,  88. 

effect  upon  existing  drain,  support,  &c.,  41,  55. 

'■'•destination  du  pere  de  famille,"  how  applied,  20,  56,  80,  88. 

rule  applied  to  support  of  two  houses  by  each  other,  55,  78. 

what  pass  on  dividing  estates  may  be  shown  by  parol  as  to  the  state 
of  the  premises,  not  what  the  parties  intended,  72. 

divisibility  of  easements,  31. 
DIVERSION  OF  WATER, 

what  riparian  owner  may  make,  281  -  283,  286  -  296,  306,  336,  346, 
441. 
.  if  gained  by  a  new  channel,  it  has  the  rights  of  a  natural  one,  647, 
648. 

owner  must  return  it  into  the  stream,  283. 

when  it  is  actionable  to  make  it,  293,  304. 

right  of,  for  irrigation,  incident  to  land,  296,  299,  303,  305. 

to  what  extent,  depends  on  size  of  stream,  &c.,  305. 

must  not  extend  to  the  entire  stream,  305,  306. 

can  only  be  made  for  irrigation  or  domestic  use,  306. 

right  of,  may  be  gained  by  adverse  user,  307,  308. 

of  one  stream  into  another  a  wrongful  act,  331. 

may  not  be  made  by  digging  near  a  stream,  34  7,  449. 

may  not  be  made  of  a  branch  of  a  stream,  347. 

if  made,  and  estate  then  conveyed,  it  becomes  established,  384,  385. 

American  law  as  to,  more  liberal  than  English,  450. 

law  of  California  as  to,  322-324,  325. 

may  never  be  made  by  one  mill-owner  to  the  injury  of  another,  307, 
324,  335,  336,  347. 

same  rule  applies  to  owner  of  one  side  as  botli  of  a  stream,  297. 

same  rule  applies  to  public  and  private  streams,  346. 


INDEX.  699 

DOMINANT  ESTATES, 

what  are,  3,  9. 

need  not  be  contiguous  to  the  servient,  3. 

union  of  with  servient,  extinguishes  easements,  10. 

death  of  owner  of,  effect  of,  on  prescription,  148. 

effect  of  division  of  the  same  on  existing  easements,  32,  33. 

docking  vessels,  right  of,  a  discontinuous  easement,  62,  596. 
DRAIN, 

when  easement  of  passes  by  implication,  41,  57,  58,  76-  78,  81  -83, 
614. 

when  reserved  upon  dividing  heritages,  59,  62,  68,  81. 

when  it  revives  upon  conveying  one  of  two  estates,  614,  618,  619. 

does  not  pass  as  appurtenant,  if  not  apparent,  65,  81,  153. 

granted  for  one  purpose,  may  not  be  used  for  another,  53. 

easement  of,  gives  no  right  to  make  it  a  nuisance,  81. 

user  of,  for  twenty  years,  presumed  to  be  adverse,  129. 

when  it  has  the  incidents  of  a  natural  stream,  73. 

if  not  lawfully  laid,  no  damages  for  obstructing  it,  417. 

effect  on  the  right  of,  if  used  to  excess,  628. 

owner  of,  is  bound  to  cleanse  and  repair,  656. 

right  does  not  cease  by  its  becoming  public,  625. 

effect  of  change  of  user,  upon  the  right,  144. 
DRAINAGE, 

surface,  268.         (See  Surface  Water.) 
DRAWING  WATER 

for  domestic  use,  easement  of,  308. 
"DRIFT"  WAY, 

what  it  is,  and  how  used,  216,  243. 

whether  included  in  a  "  carriage  "  way,  243. 
DROIT  DE  GOUTTIERE, 

easement  of,  or  eaves'  drip,  469. 

E. 

EASEMENTS. 

1.  what  they  are  and  of  what  consist,  2-4,  9. 
what  are  their  qualities,  3. 
how  far  identical  with  servitudes,  2-5,  9. 
always  incorporeal  hereditaments,  3,  14,  240. 
distinction  between,  and  profits  a  prendre^  3,  4. 
distinction  between,  and  licenses,  6. 
always  imply  an  interest  in  land,  6. 

generally  imply  two  estates  dominant  and  servient,  3,  9,  265. 
property  in,  in  gross,  how  far  a  tenement,  4. 

owner  of,  is  not  an  occupant  or  have  seisin  of  servient  estate,  3,  14. 
imply  something  enjoyed  in  another's  estate,  6,  22,  265. 


700  INDEX. 

EASEMENTS,  Continued. 

right  of  in  one,  does  not  affect  the  other's  seisin,  9. 
owner  may  have  an  action  for  disturbance  of,  9. 
nothing  properly  is,  which  is  inseparably  an  incident,  19. 
one  cannot  have,  in  his  own  land,  49,  54. 
right  of,  gives  no  right  to  the  land  itself,  240. 
■what  are  considered  natural,  276,  290,  377,  378,  427. 
an  incorporeal  right  to  draw  water  through  another's  land,  376. 
no  right  of,  gained  by  enjoyment  of  what  is  not  known,  530. 
what  are  negative  and  how  acquired,  15,  16,  18,  22,  470,  575,  594. 
2.  how  acquired,  if  freehold,  only  by  deed,  6,  23,  34. 
by  grant,  or  prescription  the  evidence  of,  7,  23  -  25. 

(See  Prescription.) 
grant  of,  how  evidenced,  24,  34. 

(See  Grant.) 
may  be  partly  by  grant  and  partly  prescription,  25. 
may  be  by  reservation  and  how,  26,  85,  89. 
when  said  to  belong  in  a  que  estate,  14. 
may  be  created  by  covenant,  34. 
who  may  have  by  custom,  7. 

when  created,  they  pass  with  the  dominant  estate,  29,  32,  88. 
must  belong  to  an  estate  to  pass  with  it,  30. 
restriction  upon  one  of  two  estates  and  yet  not  an  easement,  30. 
what  are  appendant  and  appurtenant,  29,  32. 
one  easement  may  be  appendant  to  another,  31. 
appurtenant  pass  in  the  grant  of  estate,  though  not  named,  32,  382. 
cannot  be  conveyed  separate  from  the  estate,  33. 
how  may  be  severed  from  the  estate  by  the  owner,  32. 
appurtenant,  pass  with  every  part  of  an  estate,  33,  85,  86,  88. 
do  not  pass  so  as  to  increase  the  burden,  33. 
when  privileges  used  with,  pass  with  an  estate,  35,  165. 
may  be  implied  by  grant  of  premises  by  a  plan,  35. 
may  be  granted  upon  condition,  35. 

often  pass  by  grant,  where  law  would  not  imply  a  reservation,  27. 
to  pass  as  appurtenant  must  e.xist,  or  be  expressly  named,  49,  51. 
may  arise  from  use  grantor  made  of  his  own  land,  54. 
in  what  cases  implied  on  dividing  heritages,  54,  55,  57,  58,  80,  84,  89. 
when  implied  from  condition  of  estates  granted,  60,63,  65,  81,82,  617. 
must  be  apparent  to  pass  by  implication,  65,  81,  613. 
must  be  necessary  to  be  reserved  by  implication,  66-71,  78,  80,  89, 

613. 
whether  necessary,  if  capable  of  being  supplied,  66-69. 
when  they  will  pass,  though  not  necessary  to  the  estate,  71,80,  83,  89. 
if  not  known,  they  do  not  pass,  71,  81,  530. 
rights  of,  mutually  pass  to  each  part,  on  partition  of  an  estate,  82. 


INDEX.  701 

EASEMENTS,  Continued. 

where  easements  revive  by  dividing  heritages,  83,  612  -  G21. 

how  far  and  when  created  by  estoppel,  89,  90. 

equitable  created  by  building  houses  on  streets,  squares,  &c.,  90-97. 

how  such  may  be  created  and  how  proved,  90-98. 

one  may  be  gained  by  prescription  out  of  another  that  is  granted, 

136. 
to  gain  by  user,  it  must  be  continuous,  140  - 143. 
cannot  be  gained  by  user,  against  owner's  consent,  154,  155. 
when  gained  by  acts  of  dedication  to  private  use,  190-  195. 
created  by  partition  of  estates  by  plans,  226,  227. 
public  may  gain  by  dedication,  192. 

(See  Dedication.) 
can  only  be  created  by  owner  of  inheritance,  37,  38. 
3.  In  what  easements  may  be  had,  2,  3,  595- G04. 
(See  Ways.) 
ways  in  use  pass  by  deed  of  "  all  ways,"  165. 
may  be  gained  by  towns  by  prescription,  171. 
a  perpetual  one  belongs  to  lots  sold  on  private  streets,  1 76. 
difference  between  those  of  streets  and  of  squares,  &c.,  201. 
nature  of  public  easement  in  highways,  214,  215. 
way  will  not  pass  as  incident  if  not  necessary,  80,  83,  89. 
of  maintaining  gates  across  highways  by  town,  172. 

(.S'ee  Water.     Watercourse.) 
of  watering  cattle  in  a  trench  granted  for  irrigation,  136. 
of  flowing  when  measured  by  height  of  dam,  143. 
to  draw  water,  what  is  included  in,  244. 
what  of  water  are  both  rural  and  urban,  265. 
of  upper  discharging  water  on  to  a  lower  parcel,  19,  271,  288,  427- 

432. 
of  water,  what  are  natural  easements,  276,  278-280,  290,  301,  427. 
to  receive,  use,  and  discharge  the  flow,  276,  380,  381. 
two  parcels  have  to  each  other  an  easement  and  servitude,  292. 
right  to  discharge  upon  a  lower,  a  secondary  easement,  291. 
in  favor  of  a  mill  to  prevent  irrigation  by  upper  land-owner,  301. 
of  ponding  water  on  another's  land,  310. 
such  a  freehold  interest  is  to  pass  by  deed,  310. 
in  water  in  any  manner  gained  by  user,  308. 

(See  User.) 
one  joint  owner  may  gain  prior  right  by,  to  use,  352. 
one  may  gain  exclusive  right  by,  or  against  a  co-owner,  352. 
may  be  of  any  use  of  a  stream  except  its  natural  flow,  348,  349. 
right  to  divert,  by  grant  or  prescription,  348. 
may  be  of  any  use  which  would  be  a  nuisance,  353. 
may  be  of  fouling  the  water  of  a  stream,  355. 


702  INDEX. 

EASEMENTS,  Continued. 

may  be  of  deepening  channel  to  increase  the  fall,  356, 

right  to  clear  tail-race  of  a  mill,  a  natural  one,  3ii6,  377,  378. 

may  be  gained  in  artificial  watercourses,  136,  379. 

may  be  to  water  cattle  in  another's  trench  in  one's  own  land,  136, 

379. 
not  gained  in  water  from  artificial  sources  of  supply,  371,  372. 
right  of  discharge  from  mill,  passes  with  it,  382. 
what  are  embraced  under  stat.  of  Mass.,  380  -  383. 
of  docking  vessels,  a  discontinuous  one,  62. 
of  drain,  granted  and  reserved  in  dividing  heritages,  59,  63,  66,  71, 

81,  82. 
of  support  of  houses  one  on  another,  15,  55,  78,  531. 
of  floating  logs  in  streams  where  there  are  mills,  138. 
of  depastui-ing  cattle  gained  by  a  town,  172. 
created  for  one  purpose  not  to  be  used  for  another,  53,  240,  352. 
may  be  limited  to  certain  times  and  occasions,  37. 
when  attached  to  one  parcel  not  to  be  used  with  another,  87. 

4.  can  only  be  abandoned  by  one  having  disposing  power  over  the  es- 

tate, 414. 
not  lost  by  change  in  mode  of  user,  357  -  361. 
not  lost  by  non-user  unless  an  adverse  user,  649. 
how  far  parol  license  for,  is  revocable,  310. 
created  by  covenant,  when  not  discharged  by  release  of  it,  97. 
if  granted  for  special  purpose,  lost  by  change  of  estate,  88,  623. 
of  discharge  from  mill  on  to  lower  land,  not  lost  by  unity  of  title  to, 

381. 
may  be  lost  by  a  material  change  in  the  estate,  144,  622  -  626. 
may  be  lost  by  material  change  in  use  of,  147. 
there  may  be  a  trust  of,  in  one  for  another's  use,  601. 
owner  of,  bound  to  repair,  254. 
how  lost  by  release  or  extinguishment,  600-  611. 
lost  by  unity  of  the  two  estates,  606,  607. 
suspended  by  unity  of  possession  of  the  two  estates,  606. 
if  the  title  to  one  estate  fails,  it  revives,  609. 
^vhat  unity  of  title  sufficient  to  extinguish,  609,  610. 
when  they  revive  upon  separation  of  the  estate,  611,  620. 
do  not  revive  on  separating  estates  if  they  have  been  changed,  611. 

5.  what  revive  by  conveying  one  or  both  estates,  612-621.  * 
if  natural,  they  revive,  612. 

to  revive  must  be  necessary  and  apparent,  613. 

what  easements  are  of  this  kind,  614,  616. 

cease  to  be  appurtenant,  upon  unity  of  the  estates,  616. 

continuous  may  revive,  discontinuous  do  not,  619. 

whether  revivor  of  depends  upon  expense  of  supplying,  619. 


INDEX.  703 

EASEMENTS,  Continued. 

whether  revivor  of  depends  upon  condition  of  estate  conveyed,  620, 
621. 

may  be  lost  by  change  in  condition  of  estate,  622-626. 

when  granted  for  special  purpose,  cease  with  that,  623,  624. 

extinguished  if  destroyed  by  the  act  of  God,  625. 

of  way,  not  affected  by  locating  it  as  a  public  one,  625. 

of  drain,  not  lost  by  being  made  public,  625. 

eflFect  on  party  walls  of  destroying  the  buildings,  625. 

effect  on  if  house  is  restored,  626. 
6.  Miscellaneous  Easements. 

of  burial  rights,  604. 

of  common,  598-601. 

of  depositing  bales  of  goods  on  ways,  595. 

of  digging  ore,  &c.,  596,  601. 

of  dockage  of  vessels,  596. 

of  drying  clothes,  596. 

offences,  601. 

of  herbage  and  pasture,  598. 

of  holding  town-meetings  in  parish  meeting-house,  601. 

of  laying  gas-pipe,  &c.,  601. 

of  pew  rights  in  churches,  604. 

of  piling  logs  on  another's  land,  595. 

of  taking  sea-weed,  597. 

of  throwing  rubbish  in  streams,  598. 

of  turning  a  plough  on  another's  land,  596. 

of  wharf  and  wharfage,  596. 
EAVES'  DRIP, 

right  of,  an  urban  servitude,  15. 

when  it  passes  with  a  grant,  78. 

may  be  gained  as  an  easement,  378,  469. 

known  to  the  civil,  common,  and  French  laws,  469. 

when  a  claim  of  land  and  when  of  an  easement,  470. 

negative  easement  of,  not  to  have  it  on  one's  land,  470. 

one  cannot  claim  it  upon  his  land  from  another's  house,  471. 

if  gained  in  one  form,  cannot  be  exercised  in  another,  471,  473. 

right  not  lost  by  destruction  of  the  house,  471. 

rule  of  French  law  as  to  its  exercise,  472. 

how  it  may  be  lost  by  change  of  estate,  473. 

revives  when  a  house  is  conveyed  by  the  owner,  614. 
EJECTMENT 

lies  by  owner  of  soil  of  a  way,  253,  663. 

does  not  lie  to  try  a  right  of  easement,  663. 
EMINENT  DOMAIN, 

whether  the  mill  laws  come  under,  401. 


704  INDEX. 

EMINENT  DOMAIN,  Continued. 

whether  private  ways  come  within,  401. 

is  a  right  inherent  in  every  state  sovereignty,  401. 

state  may  not  by,  take  the  land  of  A,  and  give  to  B,  402. 

if  once  exercised,  when  damages  are  given  for  a  second,  402. 
ENJOYMENT 

for  twenty  years,  when  conclusive  of  a  right,  167  -  1G9. 

secret  gives  no  prescriptive  rights,  122,  153-  155. 
(See  User.) 
EQUITY, 

when  it  enforces  parol  easements,  90,  391. 

when  it  enforces  parol  licenses,  23,  24,  310,  389  -  391. 

enforces  executed  parol  agreements  as  to  using  real  estates,  90  -  98. 

remedy  by  for  injuries  to  easements,  668  -  674. 

how  far  applicable  to  cases  of  public  nuisance,  670. 
EQUITABLE  EASEMENTS, 

what  are,  and  how  enforced,  90  -  98. 
ESTOPPEL, 

when  applied  in  gaining  easements,  89,  90,  391. 

made  by  reference  to  a  way  in  a  deed,  226. 

works  upon  one  opening  a  way  to  the  public,  182,  188. 

to  restore  premises  after  others  have  acted  upon  a  change  in,  389. 

to  object  to  what  the  owner  acquiesced  in  on  his  own  estate,  391. 

right  of  way  lost  by,  by  seeing  it  stopped,  622. 

when  owner  of  stream  estopped  to  make  a  second  change,  361,  389. 
ESTOVERS, 

right  of,  not  lost  by  change  of  house,  628. 
EVIDENCE,  » 

what  is,  of  acquiescence  to  make  prescription,  152  -  154. 
EXCAVATION.  (See  Support  of  Land.) 

EXECUTED  LICENSE.         (See  License.) 
fiXECUTOR, 

by  sale  of  testator's  land,  may  create  a  way  over  his  own,  221. 
EXCEPTION, 

easements  created  by,  26. 
EXCESS 

of  right,  user  of,  may  gain  prescription,  134. 

no  such  user  avails  if  less  than  twenty  years,  144. 
EXCHANGE 

of  ways,  if  it  can  be  made  by  parol,  258  -  262. 

of  a(iuc,(hict  l)y  parol  agreement,  390. 
EXCLUSIVE  USER, 

what  is  meant  by,  136. 

may  be  such,  though  others  have  the  same,  137,  138. 

essential  to  gaining  an  easement,  124,  136. 


INDEX.  705 

EXTRA  YIAM, 

when  one  may  go,  if  way  out  of  repair,  254-  256,  262. 
EXTINGUISHMENT 

of  easements,  how  made,  605-611,  619. 

how  may  be  by  release  by  the  dominant,  605,  627. 

may  be  by  unity  of  the  two  estates,  606,  607,  620. 

when  oceasioned  by  unity,  called  by  the  French  "  confusion,"  606. 

(»S'ee  Unity  of  Estates.) 
to  be  by  act,  it  must  be  with  that  intent,  627. 
of  covenant  in  a  lease  by  grant  of  reversion  to  lessee,  618. 
by  change  in  condition  of  the  estate,  622-626,  628,  649. 
excessive  or  abusive  use  of,  does  not  work,  627. 
of  what  is  gained  by  deed,  only  by  adverse  user,  640  -  642. 

F. 
FAMILY 

use,  water  may  be  diverted  for,  283,  288. 
FEME  COVERT, 

cannot  impose  servitudes,  36. 

no  prescription  by  user  gained  against,  156. 

becoming  such  does  not  arrest  prescription,  156. 

may,  with  husband,  dedicate  lands,  180. 

may  .acquire  easements  through  her  husband,  38. 
FENCES, 

support  of,  an  easement  and  servitude,  601, 

may  be  gained  or  imposed  by  prescription,  601,  602. 

when  and  how  far  it  runs  with  estates,  603. 

how  a  fence  is  to  be  placed  by  the  builder,  603. 

duty  of,  enforced  by  writ  curia  claudenda,  603. 

one  not  bound  to  make  against  cattle  not  rightfully  in  the  close,  604. 

when  one  who  sows  grain  must  protect  It  by,  604. 
FIELDS, 

upper  and  lower,  rule  as  to  surface  water  on,  19,  268  -  272,  427-432. 
(See  Surface  Water.) 
FILUM  AQU^, 

the  dividing  line  of  ownership,  284,  297. 

what  it  is,  and  how  it  changes  with  the  stream,  393. 

if  stream  divides,  it  has  two,  268,  293. 
FISHERY, 

liberty  of,  a  profit  a  prendre,  119. 

right  of,  an  easement,  491,  495,  500,  501. 

open  to  all  in  the  sea,  491. 

may  be  regulated  by  the  sovereignty,  491. 

state  regulation  of,  by  special  laws,  501. 

right  of,  in  the  sea,  gives  no  right  to  use  adjacent  land,  491. 
45 


706  INDEX. 

FISHERY,  Continued. 

one  may  gain  exclusive  right  in  creeks  and  rivers,  493. 

right  of,  belongs  to  ownership  of  soil,  492. 

how  far  it  can  exist  independent  of  this,  495,  499,  500. 

right  will  pass  with  land,  if  not  excepted,  496. 

will  pass  with  a  grant  of  the  water  of  a  stream,  496. 

whether  grant  of  a  piscary  passes  the  soil,  497. 

a  mere  piscary  gives  no  right  in  the  soil,  498. 

so  long  as  it  is  incident  to  ownership  of  land,  it  is  no  easement, 
500. 

no  one  has  a  right  of,  in  another's  land,  492. 

an  exclusive  right  of,  may  be  gained,  492,  495,  496,  499. 

right  of,  may  be  gained  by  grant  or  adverse  user,  493,  494,  497. 

cannot  be  claimed  in  the  sea  in  a  que  estate,  495. 

three  kinds  of,  several,  free,  and  common,  498-500. 

may  be  a  grant  of,  separately,  or  in  common  with  others,  497,  498. 

may  be  a  right  of,  in  land-owner  in  public  rivers,  502. 

trespass  lies  by  owner  of,  for  taking  fish,  501. 

a  right  to  take  fish  a.  profit  a  prendre,  496. 
FISHERMEN 

have  easements  of  drying  nets  on  one's  land,  113. 
FLOODS,  328.  {See  Freshets.) 

FLOWING, 

right  of,  gained  by  adverse  user,  309. 

when  it  passes  with  grant,  &c.,  of  mill,  44,  45,  51,  615. 

how  affected  by  state  of  dam,  56,  143,  145,  146,  332. 

where  prescription  for,  begins,  140. 

effect  on,  of  a  temporary  suspension,  147. 

how  far  actionable  if  it  stops  drainage,  328. 

how  far  actionable  for  deepening  water  in  stream  above,  328,  329, 
330. 

actionable  if  it  sets  water  on  to  upper  proprietor's  land,  331. 

adverse  in  Massachusetts,  if  it  flows  another's  land,  132. 

not  adverse  in  Maine  till  injury  done,  132. 

occasioned  by  ice,  how  far  mill-owner  liable  for,  333,  334. 

how  far  perceptible  damage  by,  necessary  to  action  for,  329,  330. 

effect  upon  the  right  of  abandoning  by  owner  or  tenant,  414. 

water  for  a  fish-pond  on  one's  own  land,  331. 

what  rights  of  are  gained  by  ad  quod  damnum,  421  —426. 
FLOW 

of  water,  right  to  enjoy,  a  natural  easement,  276, 

owner  of  stream  has  a  right  to  receive,  use,  and  discharge,  276,  288. 
FLUME.  {See  Eaves'  Dkip.) 

FLUSH  BOARDS, 

aifccting  the  right  to  flow,  146. 


INDEX.  707 

FOOT  WAY, 

what  is  meant  by,  and  liow  used,  215,  21 C. 

may  be  dedicated,  and  use  of  limited  to,  185. 
FORFEITURE 

of  easement,  when  for  condition  broken,  36. 
FOAVLING, 

right  of,  when  &  profit  a  prendre,  119. 
FOULING 

water,  no  one  has  a  natural  right  of,  52,  291,  370. 

proprietors  of  watercourses  liable  for,  287,  291,  374. 

right  only  gained  as  an  easement,  278,  279,  287,  355,  378. 

acquired  in  one  form,  not  to  be  exercised  in  another,  278,  279. 

extent  of,  may  not  be  increased  by  new  works,  361. 
FREE  FISHERY, 

what  is  (.S'ee  Fishery),  498  -  500. 
FRENCH  LAW 

of  servitudes  of  water,  506. 

as  to  effect  of  dividing  heritages,  56,  57. 
FREEHOLDS 

may  be  several  in  parts  of  the  same  house,  564. 

may  be  upper  and  lower  in  same  soil,  558,  559. 

in  easements  may  be  without  words  of  limitation,  27. 

in  soil  of  highways  over  private  property,  253. 
FRESHETS, 

how  far  referred  to,  in  limiting  right  of  flowing,  327,  328. 

how  far  mill-owners  liable  for  effect  of,  362,  363. 

distinction  between  periodical  and  extraordinary,  363. 

how  far  dam-owner  liable  for,  caused  by  ice,  364. 

G. 
GAMES 

and  sports,  right  to  exercise,  a  lawful  custom,  114-  116. 
GATES 

and  bars,  where  owner  of  soil  may  maintain,  252,  253. 
GAS  PIPES, 

right  to  lay  in  the  street  an  easement,  601. 
GRANT, 

what  are  subjects  of,  13,  14. 

of  rights  to  do  acts  on  soil  distinct  from  the  soil  itself,  14,  36. 

of  right  to  take  minerals,  an  incorporeal  one,  14. 

of  a  servitude  must  be  by  deed,  18. 

what  would  be  sufficient  in  form  to  create,  28. 

when  of  an  easement  and  when  of  land  itself.  36. 

of  principal  estate  carries  appurtenant  easements,  32. 

of  an  easement  must  be  by  one  having  an  entire  interest,  37,  38. 

when  easements  pass  by,  by  implication,  38-42,  46. 


708  INDEX. 

GRANT,  Continued. 

of  "  a  way  "  or  "  a  road  "  passes  only  an  easement,  39. 

how  such  grant  is  limited,  46,  225. 

of  a  right  to  dig  a  canal,  when  it  carries  the  materials,  39,  254. 

of  a  thing,  carries  all  that  is  necessary  to  enjoy  it,  39,  40,  52,  251  - 
257. 

easements  often  pass  by,  though  not  subjects  of  reservation,  27. 

when  it  passes  a  way  of  necessity,  40. 

of  a  mill  or  mill-site,  what  it  carries,  42  -44,  314. 

terms  and  effect  of,  limited  and  defined  by  state  of  premises,  48,  52, 
78,  165. 

if  of  one  of  several  mills,  what  it  carries,  53. 

of  a  mill  when  it  carries  a  reservoir,  53. 

when  of  part  of  an  estate  carries  an  easement  over  the  other,  54. 

of  easements  when  presumed  in  favor  of  corporations,  171. 

of  premises  and  "all  ways,"  "lights,"  &c.,  effect  on  easements  of, 
10,  33,  50,  165. 

lost  preserved,  after  period  of  limitation,  101,  102. 

of  water-power  may  be  restricted  to  certain  uses,  349,  351. 

of  water-power  may  be  in  certain  proportions,  352. 

of  a  mill,  whether  it  fixes  the  use  or  limits  the  power,  350. 

of  extending  dam  across  a  stream,  when  an  entire  power,  352. 

one  tenant  in  common  cannot  make,  to  a  stranger,  37,  38. 

one  making,  cannot  derogate  from  the  same,  77,  584. 

may  be  proved  by  user  but  not  controlled  by,  35,  110,  125. 

of  a  house,  how  far  it  carries  right  to  light,  589,  591. 
GROSS  RIGHTS, 

of  ways,  how  far  alienable,  10,  11,  36,  217. 

o? profits  a  prendre,  how  far  an  estate,  11,  118. 

to  take  water  are  alienable,  11,  12. 

how  to  be  annexed  to  or  severed  from  land,  12,  33,  217. 

easements  never  presumed  to  be,  36,  217. 

are  only  easements  for  life  of  the  owner,  36. 

how  one  can  prescribe  for  an  easement  in  gross,  118. 

such  rights  regarded  as  only  personal,  36,  217. 
GUTTER, 

pass  as  appurtenant,  76,  77. 

what  is  embraced  in  grant  of,  267. 

right  of,  revives  to  an  estate  when  conveyed,  614. 

H. 
HANGING  CLOTHES 

to  dry  on  another's  premises,  easements  of,  596 
HAWKING, 

a  I'ight  of,  a  jiro/it  a  prendre,  119. 


INDEX.  709 

HAWAII, 

law  of  servitudes  of  water  in,  508  -  510. 
HEAD  AND  FALL, 

in  a  mill-privilege,  what  is,  313,  n. 
HEAD-RACE 

of  a  mill-power,  how  measured  and  what  it  is,  313. 
HEIGHT 

and  extent  to  wljich  a  dam  may  flow,  how  ascertained,  312,  406. 
whether  to  refer  to  natural  objects  or  instrumental  measures,  312. 
if  these  differ,  which  is  to  govern,  312. 

how  far  right  affected  by  state  of  the  dam,  51. 
how  far  a  measure  of  the  easement  of  flowing,  143,  145. 
HEIRS 

have  not  the  rights  of  purchasers  as  to  implied  easements,  85. 

whether  prescription  runs  against,  if  minors,  156,  159-  163. 
HERITAGE, 

how  division  of,  affects  easements,  41,  54,  55-71,  84. 

apparent  and  continuous  easements  pass  thereby,  72,  83,  130. 

such  easements  only  pass  as  are  necessary,  80,  82,  89. 

when  division  revives  easements,  83. 

{See  Dividing  Heritages.) 
HIGHWAYS, 

distinction  between  and  private  in  Massachusetts,  175. 

what  use  of  a  way  makes  it  one,  1 72  -  1 74. 

may  be  created  by  dedication  or  prescription,  172-175,  177,  260. 

way  dedicated  and  used  is  not,  unless  accepted,  182,  183. 

use  of  a  private  way  by  the  public  does  not  make  it  one,  184. 

to  become  such,  towns  must  accept  them,  205. 

in  what  easements  in,  in  favor  of  the  public,  consist,  214. 

owner  of  soil  of,  owns  the-mines,  &c.,  under,  214. 

owner  of,  may  have  ejectment,  &c.,  for  the  land  covered  by,  214,  215. 

soil  of,  reverts  to  land-owner  if  discontinued,  214. 

how  far  regarded  an  encumbrance,  70. 

private  way  over,  not  gained  by  user,  138. 

right  to  pile  wood,  &c.,  on,  not  gained  by  user,  131. 

rights  of  adjacent  owners  in,  alike  by  dedicaticti  or  laying  out,  194. 

easement  in,  compared  with  that  in  pubHc  squares,  &c.,  201,  205. 

if  out  of  repair,  travellers  may  go  extra  viam,  254. 

none  exists  for  the  public  on  margins  of  lakes,  &c.,  208. 

obstructing  one,  a  ground  of  indictment,  193. 

bridge  in,  by  whom  to  be  kept  in  repair,  255. 

private  way  over,  gained  by  a  discontinuance  of,  139,  226. 

public  easement  in  may  be  lost  by  non-user,  640. 

no  encroachment  affects  the  easement  short  of  twenty  years,  640. 
HOLDING 

public  meetings  in  churches,  &c.,  easement  of,  601. 


710  INDEX. 

HOLE, 

right  to  dig  one,  not  d,  profit  a  prendre,  117. 
"  HORSE  WAY," 

what  is,  and  how  it  may  be  used,  216. 
HORSE-RACING 

on  certain  days  a  lawful  custom,  115. 
HOUSES, 

what  rights  as  to,  are  servitudes,  15,  531  -  535. 

sale  of,  with  "  all  lights  "  how  far  implies  easements,  42. 

right  of  support,  implied  in  grant  of,  55,  78. 

what  easements  of  light  pass  with,  77. 

one  cannot  claim  support,  if  defectively  built,  521. 

right  of  support  does  not  depend  on  state  of  repair,  528,  529, 

if  ancient,  it  has  same  right  of  support  as  the  soil,  529. 

how  far  grant  of,  passes  right  of  eaves'  drip,  78. 

what  mutual  easements  arise  as  to,  from  mode  of  erection,  90-97. 

there  may  be  separate  freeholds  in  parts  of,  564. 

whether  owners  of  separate  parts  can  rebuild  if  destroyed,  572. 
{See  SuppoKT  of  Houses.) 

I. 

ICE, 

how  far  owner  liable  for  flowing  canal  by,  333,  334,  364. 

whether  mill-owner  may  claim  that  on  his  pond,  347,  note. 
IMMITENDI  TIGNA  IN  PARIETEM, 

servitude  of,  536. 
IMPLIED  GRANT 

and  reservation  of  easements  by  construction,  27,  29,  35,  38-42,46. 

only  carries  existing  ones,  actually  in  use,  46. 

only  carries  such  as  are  apparent  and  continuous,  65,  81. 

when  Avill  pass  such  as  exist,  though  not  necessary,  71. 

will  only  pass  such  as  are  known,  71,  81. 

of  right  to  repair  pipes,  by  a  right  to  lay  them,  40. 
IMMEMORIAL 

enjoyment  not  now  requisite  for  prescription,  102. 
INCIDENT,  • 

what  pass  as,  Avith  the  grant  of  a  thing,  42,  46,  49,  51. 

what  easements  pass  as,  in  grants,  79. 

what  easements  are,  as  to  other  rights,  32. 
INCORPOREAL 

hereditaments,  easements  are,  3,  376. 
INFANT 

cannot  impose  servitudes  on  lands,  36. 

heir,  whether  prescription  can  be  gained  against,  156,  159  -  163,  166. 

how  far  bound  by  an  abandonment  of  an  easement,  414. 

may  ac(|uire  easements  by  guardians,  38. 


INDEX.  711 

INHABITANTS 

of  localities  may  claim  by  custom,  111,  120. 

no  one  can  release  easements  gained  by  custom,  114. 

cannot  claim  profits,  &c.,  112. 

when  incorporated  may  claim  by  prescription,  117,  119,  120. 

must  claim  by  a  corporate  act,  117. 

cannot  claim  by  acts  of  individuals,  117. 

may  claim  easements  in  a  que  estate,  120. 

may  prescribe  for  town  ways,  171,  172. 

whether  they  can  prescribe  for  a  highway,  172,  173. 
INFRINGEMENT 

of  an  easement.  (^'ee  Nuisance.) 

INHERITANCE, 

owner  of,  must  acquiesce  to  create  an  easement,  152. 

how  far  he  may  claim  what  tenant  has  gained,  158. 
INJUNCTION, 

when  a  remedy  in  equity  for  disturbing  an  easement,  668  -670. 
INJURY  DONE, 

time  of  prescription  begins  from,  128,  129,  132,  405. 

if  to  a  right,  is  enough,  though  no  damage  done,  129,  132,  133,  282, 
295. 

no  action  lies  for,  if  the  act  itself  is  not  unlawful,  384. 
INSANE, 

no  one  can  prescribe  against,  156,  160. 
INTENTION, 

a  requisite  of  adverse  user,  132. 
INTEREST 

in  easements,  whether  perpetual,  27. 
INTERRUPTION 

by  owner,  when  it  defeats  a  continuous  user,  141,  143. 

what  would  amount  to  such,  141  - 144,  155,  156,  159. 

when  change  of  use  works  one  to  an  easement,  147. 

what  works  a  loss  of  easement,  636  -  638,  642,  643,  646. 

if  by  act  of  Providence  and  it  ceases,  easement  revives,  638. 

if  by  license,  easement  revives  when  license  revoked,  652. 
INVASION 

of  a  right  makes  a  user  adverse,  133. 

a  ground  of  action  though  no  damage  done,  282,  295. 
IRRIGATION, 

what  is  meant  by,  and  its  measure,  294  -  296,  298. 

an  inherent  right  in  riparian  owner,  288,  289,  297,  301. 

must  be  used  in  a  reasonable  manner,  298,  302,  305. 

whether  sluices  may  be  cut  for,  298,  300. 

gives  no  right  to  stop  the  stream,  299,  300,  306. 

what  would  be  reasonable,  depends  on  size  of  stream,  302,  304. 


712  INDEX. 

IRRIGATION,  Continued. 

one  may  gain  right  to  more,  by  adverse  user,  307. 

rule  as  to,  less  stringent  here  than  in  England,  299. 

in  comparison  with  mills  a  question  of  degree  only,  300. 

user  in  a  proper  manner,  not  an  easement,  301. 

right  does  not  make  estates  dominant  and  servient,  306. 

may  be  lost  by  adverse  enjoyment,  301. 
ISLAND, 

if  found  in  river,  whom  it  belongs  to,  392. 
ITER, 

what  kind  of  way  by  the  civil  law,  216. 


J. 

JOINT  OWNERS 

of  watercourses,  their  rights  in  them,  283,  284. 
of  mill  privileges,  how  to  use  them,  344. 
duty  of,  as  to  repairs  of  dam  and  works,  344. 
what  each  may  do  as  to  repairs,  345. 
each  may  draw  as  long  as  any  water,  345. 
how  far  they  can  have  partition  of,  344,  345. 
what  passes  by  grant  of  one  of  several  mills,  345,  346. 
of  land,  cannot  create  easements  against  each  other,  37,  38,  222. 
of  water-power  user  by  one  not  adverse  to  the  other,  135. 
JURA  NATURiE, 

what  rights  are  of  the  character  of  easements,  19,  266,  274,  276, 
281,  290,  304,  326,  381-383,  432,  467,  512,  558, 


K, 

KNOWLEDGE, 

must  be  of  an  easement  to  pass  by  implication,  71. 
by  the  tenant  to  gain  easement  by  user,  152,  154. 
where  requisite  knowledge  is  implied,  152,  153. 


L. 

LAND 

is  never  appurtenant  to  land,  39,  89. 
LANDLORD, 

how  far  he  can  claim  easement  through  tenant,  158. 
{See  Reversioner.) 
LEX  REI  SITiE 

governs  rights  of  dominant  and  servient  estates,  402. 
LAKES 

have  not  the  incidents  of  watercourses,  268. 


INDEX.  713 

LANDING  PLACES 

on  rivers,  &c.,  who  may  use  and  when,  483,  484. 

may  be  dedicated  to  the  public  use,  484,  485. 

how  far  a  right  to  is  a  prescriptive  one,  486,  487. 

whether  such  right  can  be  claimed  for  all  purposes,  487. 

LATERAL  SUPPORT 

of  lands,  511-530. 

(See  Support.) 

LENGTH  OF  TIME 

requisite  to  gain  an  easement,  101  -103,  122,  123. 
(See  TiMK.) 
LIMITATION, 

the  terms  of,  applied  to  prescriptions,  101,  107,  122,  123. 

how  far  rules  as  to,  apply  to  prescriptions,  159  -  163. 

how  far  enjoyment  during,  becomes  conclusive  of  right,  102-  109. 
LICENSE, 

distinguished  from  easement,  6,  23. 

carries  no  interest  in  land,  6,  23. 

is  not  assignable,  8. 

who  may  exercise,  7. 

given  by  parol,  generally  revocable,  6,  7,  23,  310,  380,  389,  649. 

when  required  to  be  by  deed,  23,  35. 

when  parol  sufficient,  35. 

when  not  revocable  by  rules  of  equity,  8,  23,  24,  379,  389. 

when  executed  on  licensee's  land,  not  revocable,  24,  650  -  653. 

inferred  from  opening  a  way  to  the  public,  181  -  206. 

extent  of  license  inferred  from  apparent  intent  of,  181. 

implied  by  opening  places  of  business,  &c.,  207. 

to  lay  pipes,  imply  license  to  repair  them,  40. 

to  pond  water,  how  far  revocable,  310,  389. 

parol  to  erect  a  dam,  revocable,  389. 

to  lay  aqueduct  when  not  revocable,  390,  391. 

in  what  states  the  common  law  as  to  revoking  prevails,  24. 

in  what  states  the  rules  of  equity  prevail,  24. 

not  revocable  if  executed  on  a  third  person's  land,  652,  653. 
LIGHT  AND  AIR. 

1.  right  of,  an  urban  servitude,  16. 

an  easement  or  negative  servitude  by  common  law,  5  74-578. 

how  far  it  can  be  a  subject  of  prescription,  576. 

common  law  of,  not  in  general  use  in  U.  States,  583-590,  614. 

gained  in  England  by  mere  occupancy,  576. 

owner  may  erect  barriers  to  prevent  it,  576. 

customary  rights  as  to,  in  London,  5  7  7. 

can  only  be  gained  against  one  having  the  inheritance,  579. 

how  far  raised  by  implication  in  grants,  or  reservations,  42,  77,  88, 
579-581,  614. 


714  INDEX. 

LIGHT  AND  AIR,  Continued. 

easement  of,  passes  if  necessary  to  the  house,  581,  590, 

extent  of  easement  of,  how  measured,  582. 

how  far  right  of,  affected  by  change  of  tenement  and  increase  of 
user,  629-631. 

whether  stopping  a  window  destroys  easement,  632. 

right  of,  lost  by  ceasing  to  enjoy  and  use,  634. 

what  amounts  to  abandonment  of,  635,  636. 

states  in  which  the  common-law  right  prevails,  590,  591. 

of  abating  obstructions  to  enjoyment  of,  676. 
2.  air,  right  of  pure,  incident  to  ownership  of  a  house,  592. 

in  what  cases  action  lies  for  corrupting,  592. 

one  may  reasonably  use  his  premises,  though  affecting  others'  air, 
593. 

one  may  not  render  air  impure  by  his  business,  593. 

may  acquire  right  by  user  to  create  noisome  smells,  593. 

one  may  have  a  negative  easement  not  to  carry  on  trades,  &c.,  594, 
595. 
8.  whether  easement  of  wind  to  carry  a  mill  can  be  had,  591,  592. 
LOCALITY, 

what  easements  arise  from  in  several  estates,  18,  291,  292,  429,  512. 
LOSS  OF  EASEMENT, 

how  occasioned,  144,  147,  622-626. 
LOST  GRANT  OR  DEED, 

presumed  after  time  of  limitation,  24,  25,  101,  105-107. 
LOUISIANA, 

law  of,  as  to  servitudes  of  water,  506. 


M. 
MANUFACTURES, 

law  as  to  depositing  waste  matter  in  a  stream,  281. 
MARRIED  WOMEN.         (See  Femes  Covert.) 
MILLS, 

moved  by  water  not  known  to  Roman  law,  505. 
1.  owners  of,  have  rights  both  of  land  and  of  water,  332,  333. 

rules  as  to  occupying  and  appropriating  water  for,  315,  316,  319. 

what  a  devise  or  grant  of  carries  as  appurtenant,  42,  44,  45,  48,  70, 
133. 

owner  of,  has  a  right  to  the  fall  of  water  in  his  own  land,  311,  313, 
334. 

owner  of  may  flow  back  to  upper  line  of  his  land,  312,  327,  333. 

how  far  liable  for  flowing  in  freshets,  327,  328. 

whether  liable  for  consequences  of  ice,  333,  334. 

may  deepen  and  change  channel  in  his  own  land,  334,  388. 

may  clear  the  tail-race  of,  and  vent  the  water  from,  31,  334,  377. 


INDEX.  715 

MILLS,  Continued. 

the  right  to  receive  and  discharge  water  for,  a  natural  one,  310. 

the  right  to  pond  water  for,  on  another's  land  an  easement,  310. 

owner  of,  may  gain  exclusive  right  to  water  by  user,  301. 

what  privileges  pass  with,  depends  on  state  of  premises,  48,  70,  133. 

grant  of  one  of  several,  what  it  carries,  53,  346. 

when  owner  of  may  maintain  reservoirs  for,  341,  366. 

when  one  owner  may  draw  from  the  pond  of  another,  343  -  366. 

of  his  right  to  water  collected  in  springs,  &c.,  437,  439. 

cannot  claim  percolating  waters  from  swails,  &c.,  435  -438. 

any  right  to  water  other  than  natural,  to  be  claimed  as  an  easement, 

348. 
owner  of  may  not  add  a  new  stream  to  an  existing  one,  331. 
owner  of  may  not  divert  the  water  of  a  stream,  336,  346. 
may  not  flow  back  water  on  another,  though  a  public  stream,  346. 
when  owner  of  may  repair  embankment  on  another's  land,  357. 
owner  may  stop  the  stream  to  repair  his  works,  336. 
what  are  owner's  rights  and  duties  as  to  repairs  of,  344,  345,  362. 
may  fill  his  pond  to  start  his  works,  336-339. 
his  interference  with  a  lower  mill  must  be  reasonable,  338. 
what  is  a  reasonable  use  of  the  water  is  for  the  jury,  338,  339. 
upper  owner  may  not  render  lower  mill  useless,  339. 
what  is  a  reasonable  use  not  fixed  by  the  owner's  convenience,  335. 
owner  of,  may  change  the  mode  of  using  the  water,  357  -  361,  628. 
owner  of,  may  adopt  improved  works  in,  360,  628. 
whether  owner  of,  may  cease  to  maintain  a  pond  to  another's  injury, 

389,  390. 
what  rules  regulate  mills  of  different  capacities  on  same  stream,  305, 

337-341. 
what  rules  as  to  operating  mills  in  respect  to  each  other,  318,  320, 

321,  334,  340,  341. 
lower  not  liable  for  flowing  caused  by  the  upper,  34  7. 
lower  not  bound  to  contribute,  if  upper  increases  the  stream,  346. 
how  far  upper  can  divert  the  increase  it  creates,  34  7,  359. 
prescription  for,  may  be  gained,  though  the  dam  be  a  highway,  346. 
rights  of  owner  of.  In  artificial  channels  like  those  in  natural  ones,  388. 
owner  of,  may  not  change  a  channel  to  the  injury  of  those  below,  388. 
owner  of,  may  not  corrupt  or  foul  the  stream,  594. 
when  owner  of,  in  declaring  for  injury  to,  must    allege    it  to  be 

ancient,  383. 
2.  privilege  or  site,  —  what  it  embraces,  311  -  314. 
not  a  divisible  thing,  314. 
limited  to  owner's  own  land,  327,  333. 
orant  or  reservation  of,  what  it  carries,  43  -45,  51,  384. 
grant  of,  refers  to  the  existing  state  of  things,  52,  384,  385. 


716  INDEX. 

MILLS,  Continued. 

implies  the  ownership  of  land,  to  set  a  mill  on,  311. 

user  by  one  of  several  owners  not  afl verse  to  others,  136. 

rules  as  to  occupying  and  appropriating,  315,  316,  319. 

rights  gained  by  priority  of  occupation,  315-320,  336-  340. 

how  far  occupying  by  one  excludes  others,  317,  318,  320-326,  334, 

339,  340. 
occupying  a  part  of,  leaves  balance  open  to  others,  332. 
■whether  a  grant  of  is  a  measure  of  power  or  defining  a  use,  349  - 

352. 
when  riparian  owner  bound  to  inquire  before  occupying,  648. 

3.  Z)rtm,  one  may  erect  on  his  own  land,  310. 

one  may  not  obstruct  by,  a  navigable  stream,  310. 

when  owned  jointly  though  on  separate  lands,  344,  345. 

rights  and  duties  of  joint  owners  to  each  other,  344,  345. 

a  right  to  maintain  gained  as  an  easement,  133. 

changing  place  of,  does  not  affect  an  easement,  145. 

what  is  meant  by  "  height  of,"  145. 

how  far  height  and  condition  of,  a  measure  of  a  right  to  flow,  51, 

145,  332. 
how  far  the  right  affected  by  the  dam  being  leaky,  147. 
by  what  process  the  effect  of  two  to  be  compared  and  measured, 

312. 
what  owner  of,  may  and  must  do  in  respect  to  repairs  of,  362,  655. 
license  to  build,  a  revocable  one,  389. 

4.  Pond,  right  to  flow  gained  by  adverse  user,  133. 
what  rights  embraced  in  grant  of,  52. 

Race  passes  with  grant  of  mill,  70. 
"Head-race  and  tail-race"  of,  how  measured,  313. 
"  Head  and  fall  "  of,  what  is  meant  by,  313,  n. 

flowing  another's  land  by,  always  adverse  in  Massachusetts,  132,  133. 
such  flowing  not  adverse  in  Maine  till  damage  done,  132. 
yard  right  of,  when  it  passes  as  an  easement,  44,  227,  228,  595. 
what  amounts  to  an  abandonment  of,  414,  634,  636  -639,  646,  647. 
whether  tenant  for  life  can  abandon  as  to  the  reversioner,  414. 
MILL  LAWS, 

systems  and  origin  of,  395-  397. 

do  not  extend  to  tide  mills,  408. 

necessarily  local  in  their  obligation,  418. 

how  far  constitutional,  396-401,  426. 

how  far  an  exercise  of  eminent  domain,  401. 

common-law  remedy  superseded  by,  402. 

wliat  are,  in  Massachusetts,  Maine,  and  Wisconsin,  403  -  416,  421. 

what  are  navigable  .streams  under  these,  403. 

give  no  right  to  erect  dams  on  another's  land,  403. 


INDEX.  717 

MILL  LAWS,  Continued. 

provide  a  remedy  to  land-owner  for  damages,  403,  404. 

different  rules  for  this  of  Maine  and  Massachusetts,  405,  417,  418. 

effect  of  a  parol  release  of  damages,  406. 

height  of  dam  and  flowing  how  to  be  fixed,  406,  413. 

apply  only  to  such  as  have  an  entire  privilege,  407. 

authorize  maintaining  reservoirs,  407. 

how  reservoirs  to  be  managed,  407. 

one  owner  cannot  flow  out  a  prior  occupant,  408,  417. 

what  constitutes  an  occupancy  of  a  privilege,  409  -  412. 

any  part  left  b}-  one  unoccupied,  may  be  appropriated  by  another, 

408-411,  413. 
extent  of  occupation,  how  limited  and  ascertained,  413. 
whether  these  apply  to  cases  of  limits  fixed  by  grant,  413. 
they  do  not  apply  if  owner  has  no  mill,  413. 
land-owner  may  protect  his  land  from  being  flowed,  415. 
flowing  under  these,  is  no  disseisin,  416. 

any  parol  agreement  as  to,  does  not  run  with  the  land,  406,  416. 
mill-owner  liable  only  while  owner  of  it,  416. 
mill-owner  may  not  affect  a  navigable  stream  or  highway,  416. 
these  laws  extend  to  injury  to  underground  drains,  416. 
how  far  United  States  bound  by,  as  proprietor  of  land,  418-420. 
of  Maine,  gives  a  right  to  cut  canals,  420. 

of  Rhode  Island,  prohibits  detaining  water  over  twelve  hours,  421. 
of  Virginia,  gives  mill-owner  title  to  the  land  taken,  421. 

gives  owner  on  one  side  to  extend  his  dam  across,  422. 

provides  a  writ  of  ad  quod  damnum,  422  -  426. 

what  is  settled  under  this  writ,  422,  423. 
of  Missouri,  Arkansas,  and  Kentucky,  423,  424. 
of  Mississippi,  North  Carolina,  Indiana,  425. 
of  Illinois  and  Florida,  425. 

in  what  states,  ad  quod  damnum  a  prerequisite  for  a  mill,  426. 
of  Alabama  declared  unconstitutional,  426. 
MINERALS, 

right  to  take,  is  an  easement,  14,  596. 
how  it  differs  from  a  grant  of  a  mine,  14. 
MINE, 

grant  of,  conveys  part  of  the  freehold,  14. 
in  Iowa  may  be  made  by  parol,  596. 
has  prior  right  of  water  to  work,  in  California,  322,  323. 
may  be  a  freehold  of,  distinct  from  that  of  the  surfcice,  558. 
when  one  working  must  have  support  for  upper  soil,  559  -  561. 
when  ownership  gives  right  of  access  to  dig  for,  560. 
owner  is  bound  to  guard  his  shaft  against  cattle,  564. 
{See  Support  of  Subjacent  Soil.) 


718  INDEX. 

MINORITY 

of  heirs,  when  it  suspends  prescription,  151,  159  -  1G6,  168. 
MINORS 

cannot  create  easements,  36. 

may  acquire  easements  through  guardians,  38. 

female  marrying  does  not  postpone  prescription,  156. 
MURS  MITOYENS, 

party  walls,  laws  of  France  as  to,  551  -556. 


N. 

NATURAL  EASEMENTS, 

what  are,  19,  276  -  280,  356,  427. 
how  far  flow  of  a  stream  is,  20. 
pass  with  estates  as  of  right,  85. 

may  be  lost  by  change  and  disuse  of,  by  the  owner,  75. 
right  to  clear  tail-race  of  a  mill,  377,  378. 

rio-ht  of  support  of  soil  beneath  and  laterally,  512,  514,.  558  -560. 
revive  on  conveying  one  of  two  estates,  612. 
stream  when  rights  of,  attach  to  artificial  ones,  385. 
NAVIGABLE  STREAMS, 

what  are,  at  common  law,  475. 
what  are,  by  laws  of  states,  403,  476  -  480. 
niay  not  be  obstructed  by  dams,  &c.,  310,  480. 
one  injured,  thereby  may  sue  for  the  obstruction,  355. 
a  mill  upon,  may  gain  a  right  to  flow  lands  by  prescription,  346. 
rights  of  public  to  use  as  highways,  474,  505. 
{See  Public  Streams.) 
NECESSITY, 

way  of,  how  to  be  used,  216. 
how  acquired,  and  the  character  of,  218  -  224. 
passes  with  land  when  granted,  40. 
NECESSARY, 

how  far  it  must  be  to  work  a  reservation  of  an  easement,  68,  69. 
everything  for  enjoyment  passes  with  a  thing  granted,  39. 
whether  it  is  such,  a  test  of  what  is  incident  in  a  grant,  46,  78. 
such  easements  revive  on  separating  estates,  613. 
NEGATIVE  SERVICES 

and  easements,  what  are,  15,  16,  18,  470,  575,  591. 
of  light  and  prospect  in  New  York,  22. 
of  light  and  prospect  run  with  parts  of  estates,  591. 
may  be  gained  by  adverse  enjoyment,  133. 
may  be  gained  against  offensive  trades,  594. 
NON- APPARENT 

easements,  what  are,  1 7. 


INDEX.  719 

NON-OFFICIENDI 

luminibus,  &c.,  servitude  of,  where  applied,  22. 
NON-USER, 

whether  it  extinguishes  an  easement,  144,  636,  639  -  648. 

time  of  must  be  as  long  as  requisite  to  gain  by  user,  639. 

must  be  of  a  character  to  show  intent  to  abandon,  640. 

or  it  must  have  misled  others  to  expend  money,  640. 

public  highway  may  be  lost  by,  640. 

no  length  of  time  bars  easements  acquired  by  deed,  640,  641,  643. 

if  user  prevented  by  land-owner,  easement  lost  by,  642. 

how  far  evidence  of  abandonment  of  what  is  gained  by  user,  643, 
645. 

when  adverse  party  is  to  inquire  as  to  intention  in  non-user,  648. 
NUISANCE.  (See  Abatement.) 

what  it  is,  and  what  remedy  therefor,  663,  668,  675. 

party  continuing  one  liable,  though  erected  by  another,  663. 

when  one  continues  liable  for,  though  not  in  possession  of,  the  cause, 
666. 

when  it  may  be  abated  by  the  party  injured,  675  -  678. 
OBJECTION 

to  user  made  by  owner  defeats  prescription,  154. 

O. 

OBSTRUCTION 

to  flow  of  water,  owner  may  not  make,  288. 
one  repairing  a  way  may  not  make,  655. 
to  flow  of  water,  when  actionable,  292,  293. 
may  not  be  made  for  purposes  of  irrigation,  299. 
remedy  for,  if  public  bridge  or  railroad  cause  it,  288,  289. 
of  natural  drainage,  if  by  flowing,  actionable,  328. 
remedy  for,  a  local  action,  661,  662. 
one  continuing  liable,  though  created  by  another,  663. 
when  owner  of  source  may  stop  supply  of  water,  370,  371. 
land-owner  below  source,  may  not  stop  flow  of  water,  369. 
one  may  stop  ditch  dug  in  his  own  land,  83,  372. 
what  owner  may  do  to  remove  one  in  another's  land,  290. 
in  a  private  way,  does  not  justify  passing  extra  vimn,  255,  256. 
OCCUPATION 

of  a  mill-privilege,  what  is,  315-317,  326,  410-412. 
of  a  part  does  not  affect  the  rest,  316  -  322,  332,  388,  411. 
what  rights  are  gained  by  priority  of,  315  -  320,  325,  333. 
if  gained  of  right,  gives  no  right  to  divert  the  stream,  324. 
when  gained  for  one  use,  gives  no  precedence  for  another,  323. 
to  gain  priority  by,  one  must  have  a  grant  or  prescription,  326. 
rules  as  to,  in  California,  321  -  323. 


720  INDEX. 

OCCUPATION,   Continued. 

when  act  of,  of  one  privilege,  works  abandonment  of  another,  647. 

extent  of,  limited  by  capacity  of  the  dam,  332. 
OCCUPANTS, 

successive,  may  gain  prescription,  if  privies,  148-  151. 
ONERIS  FERENDI, 

servitude  of,  by  civil  law,  531,  536,  656. 
OPEN  USER, 

what  sufficient  to  gain  prescri2)tion  by,  152  -  155,  530. 
OPEN  AREAS, 

when  an  easement  for  several  houses,  neither  may  disturb,  85. 

original  owner  cannot  extinguish  the  right,  86. 

using  a  way  over,  when  adverse,  131,  137. 

when  having  such,  is  a  public  license  to  use,  207. 

when  leaving  such,  is  not  a  dedication,  184,  487. 
OPENING 

a  way,  when  a  license  to  a  public  use  of,  181. 

owners' 

of  upper  and  lower  fields,  rights  as  to  water  on,  19,  427  -  432,  439. 

lower  one  may  raise  his  land,  270,  277. 

of  entire  estate  can  alone  ci'eate  easement,  37,  38. 

of  inheritance  must  acquiesce,  to  create  prescription,  106. 

objections  made  by,  prevents  prescription,  154. 

of  dedicated  ways,  &c.,  may  not  obstruct  them,  209,  210. 

of  soil,  what  he  may  do  as  to  way  over  it,  246. 

of  water,  if  joint,  what  they  may  do  as  to  its  use,  284. 

P. 
PARCEL, 

when  an  easement  may  pass  as,  in  a  deed,  89. 

when  a  thing  may  pass  as,  by  being  called  appurtenant,  89. 
PAROL, 

release  of  damages  good  by  the  mill  laws,  406. 

license  to  pond  water  how  far  revocable,  310,  389. 

license  to  erect  a  dam  where  revocable,  389. 

license  to  lay  aqueduct  pipes  when  not  revocable,  390,  391. 
PARTITION 

of  estates  carries  all  existing  casements  and  privileges,  82. 

when  made  by  a  plan  carries  all  ways  laid  upon  it,  226,  227. 

how  and  when  to  be  made  of  water  power,  344,  345. 
PARTY  WALLS, 

what  are,  536.  537. 

when  an  easement  of  arises  between  two  houses,  536,  538,  542,  543, 
546. 

neither  owner  may  impair  the  wall,  539,  546,  548,  549. 


INDEX.  721 

PARTY  WALLS,  Continued. 

how  far  either  is  responsible  for  injury  to,  540,  541,  548. 

either  party  may  increase  the  height  of  his  part  of,  538. 

when  one  may  underpin  or  repair  it,  539,  541,  545. 

when  one  may  rebuild  it,  539^  540,  544,  547. 

how  far  one  bound  to  contribute  towards  repair,  &c.,  543  -  545. 

how  far  joint  use  evidence  of  joint  ownership,  540,  542,  549. 

each  party  may  own  to  centre  of  the  wall,  545. 

it  may  be  one,  though  resting  on  arches,  545,  546. 

tenants  for  years  cannot  create  them,  543. 

if  for  one  size  or  species  of  house,  not  such  for  a  different  one,  547. 

effect  upon  the  right  of,  if  building  is  burnt  or  ruinous,  542  -  544, 
547,  025,626. 

when  one  is  liable  to  pay,  if  he  uses  another's  wall  as  such,  544,  548. 

civil  law  and  that  of  France  as  to,  550,  556. 

effect  of  abandoning  use  of  such  wall  by  one  party,  555,  556. 

law  of  Pennsylvania  as  to  adjacent  owners,  556,  557. 

when  right  revives,  if  house  is  rebuilt,  625. 
PASSAGE 

way  between  two  houses  passes  by  grant  to  each,  72. 

as  used  with  city  lot,  when  it  passes,  74,  75,  79. 

may  pass,  though  not  one  of  necessity,  74. 

uncertain,  or  in  different  directions,  not  to  be  claimed,  121. 
PASTURAGE, 

easement  of,  may  be  gained  by  a  town,  172. 

general  easement  of,  what  it  includes,  598. 

not  gained  on  beaches  or  open  commons,  127,  128. 
PERCOLATING  WATERS, 

how  far  owner  liable  for  if  escaping  through  a  dam,  364. 
(See  Subterranean  Waters.) 
PERMISSIVE  USE, 

never  a  ground  of  prescription,  124  -  126. 

may  become  adverse,  127. 

user  unexplained,  not  presumed  to  be,  129. 

use  of  a  way  by  part  of  the  public,  not  a  dedication,  184,  185. 
PERSONAL 

services,  what  are,  5,  504. 
PERSONS 

only  can  claim  by  prescription,  111. 

may  claim  profits  a  prendre^  112. 
PEW  RIGHTS, 

in  churches,  when  easements,  604. 

owner  of,  may  have  trespass  for  injury  to,  604. 
PILING  LOGS, 

or  lumber,  easement  of,  belonging  to  a  saw  mill,  595. 
46 


722  INDEX. 

PISCARY, 

right  of  passes  by  grant  of  water,  267. 
general  rights  of,  491  -  502. 

(See  Fishery.) 
PLEADING, 

how  rights  by  prescription  must  be  set  out,  110,  121,  131,  6GG,  667. 

when  for  injury  to  a  mill,  it  must  be  laid  as  an  ancient  one,  383. 
PONDS, 

right  to  fish  in,  in  Massachusetts,  491,  note. 
"  POOR," 

"  indigent,"  &c.,  cannot  claim  by  custom,  116. 
POSITIVE 

easements,  what  are,  5. 
POSSESSION 

must  be  actual  to  gain  a  prescription,  123. 

by  successors,  when  it  gains  a  prescription,  148-151. 
PRAEDIAL  SERVICES, 

what  are,  5,  15. 
PREMISES, 

state  of,  referred  to  define  terms  of  grants,  &c.,  48,  52,  78,  165. 
PRESCRIPTION, 

evidence  of  a  presumed  grant,  24,  101,  102. 

properly  applies  to  incorporeal  rights  alone,  100,  110. 

now  used  in  respect  to  all  rights  gained  by  enjoyment,  25,  100. 

distinction  between  ancient  and  modern,  24,  25,  100,  102,  105. 

once  implied  enjoyment  beyond  memory  of  man,  25. 

now  applied  to  presumption  from  long  enjoyment,  24. 

assumes  a  grant  made,  now  lost,  24,  101. 

how  distinguished  from  usucapion.,  100. 

how  distinguished  from  custom.  111,  112,  120,  489,  490. 

how  distinguished  from  dedication,  175,  177,  187.  , 

corporations  may  claim  by,  171,  172. 

can  only  be  gained  in  subjects  of  grant,  110,  111,  164,  381,  382, 
et  seq. 

must  be  reasonable  to  be  good,  115,  120. 

must  be  certain  and  definite  to  be  good,  115. 

may  be  of  everything  which  is  a  subject  of  custom,  116,  117. 

cannot  be  In  what  is  common  to  all,  138. 

m  profits  a  p7-endre  only  gained  in  a  que  estate,  14,  117. 

what  are  subjects,  as  profits  a  prendre,  117. 

rights  to  stop  watercourses  gained  by,  283,  354. 

may  be  for  exclusive  control  of  a  stream,  318,  354. 

right  to  enclose  part  of  highway  gained  by,  215. 
cannot  apply  to  rights  in  one's  own  land,  165,  379,  et  seq. 
does  not  apply  to  what  is  unknown,  128,  468,  530. 


INDEX.  723 

PRESCRIPTION,  Continued. 

none  as  to  water  percolating  in  the  earth,  128,  453,  454,  462-468. 

may  be  gained  as  public  way  by  towns,  172-  174,  177. 

how  far  this  makes  a  dedication,  1 74. 

may  be  of  a  right  to  take  coal,  not  of  a  vein,  121. 

may  be  a  private  right  though  the  public  use  it,  139. 

implies  one  to  make  and  another  to  accept  a  grant.  111,  112. 

can  only  be  claimed  by  and  through  these,  112. 

can  only  be  gained  by  actual  user  and  enjoyment,  123. 

user  must  be  with  intent  to  claim  a  right,  134. 

not  gained  by  successive  acts  of  trespass,  143. 

how  far  gained  by  successive  occupants,  148-150. 

"what  user  necessary  to  gain  one,  122-13G, 

must  be  adverse,  124  -  136. 

(See  User.) 
enough,  if  it  invades  some  right,  129,  354. 
if  unexplained,  presumed  to  be  adverse,  129. 
cannot  be  gained  by  tenant  against  landlord,  150. 
can  only  be  gained  against  the  owner  of  the  inheritance,  579. 
cannot  be  by  agent  against  principal,  150. 

cannot  be  gained  against  reversioners,  105,  152,  156  -158,  579. 
cannot  be  gained  against  infants,  femes  covert,  &c.,  156,  166. 
gained  against  all  interested  in  estate  or  none,  152. 
not  gained  against  cotenants,  if  one  an  infant,  &c.,  166,  167. 
may  be  gained,  if  servient  estate  be  a  conditional  fee,  159. 
to  gain,  owner  must  know  and  acquiesce  in  the  user,  105,  152,  158. 
can  be  gained  only  while  owner  can  resist,  156. 
cannot  be  gained  if  owner  objects  or  resists,  154,  155. 
begun  against  tenant  will  not  run  against  landlord,  158. 
to  gain,  user  must  be  continuous,  140. 

(Sec  User.) 
what  interruption  of  user  will  affect,  141,  142. 
of  flowing  not  affected  by  change  of  place  of  dam,  145. 
once  begun,  whether  affected  by  death  of  owner,  159-  163,  166. 
if  owner  have  minor  heirs,  is  it  suspended,  159-163,  166. 
nature  and  extent  of,  fixed  by  actual  user,  109. 
not  gained  by  pasturing  cattle  on  beaches,  commons,  &c.,  127,  128. 
difference  between,  and  gaining  lands  by  disseizin,  155. 
what  length  of  enjoyment  necessary  to  gain,  101,  122,  123,  130. 
when  begun,  what,  if  anything,  will  stop  its  running,  156  - 158. 
time  of,  does  not  begin  to  run  till  Injury  Is  done,  128,  129,  355. 
begins  when  a  right  is  Invaded,  129. 
when  It  begins  for  flowing  lands,  140,  405. 

how  far  law  of  limitations  applies  as  to  time,  101,  122,123,  159-163. 
whether  tenant  for  life  can  gain  for  his  x-eversloner,  158. 


724  INDEX. 

PRESCRIPTION,  Continued. 

are  strictly  construed  as  to  their  extent,  110. 

how  far  right  of  flowing  fixed  by  height  of  dam,  51,  14.3,  145. 

may  be  gained  in  an  easement  granted  for  a  different  use,  136,  379. 

of  way,  not  lost  by  another  way,  121. 

may  exist  in  same  land  for  different  purposes,  138,  139. 

two  may  have  in  same  land,  though  one  is  paramount,  139. 

easement  may  be  claimed  by,  or  by  custom,  119,  139. 

what  may  be  prescribed  for  in  a  que  estate,  118,  120. 

when  and  how  one  can  be  claimed  in  gross,  118. 

not  a  good  one  to  maintain  a  house  on  another's  land,  121. 

one  may  be  gained  against  a  dedication,  211,  212. 

how  far  it  constitutes  a  title,  102. 

how  far  regarded  as  a  statute  bar,  102  -  104. 

right  by  may  be  released  or  extinguished,  114. 

different  rules  as  to,  under  mill  laws  of  Massachusetts  and  Maine, 
405. 

different  persons  may  have  in  respect  to  same  estate,  138. 

cannot  be  claimed  in  underground  waters,  462-468. 

Rule  of,  under  code  Napoleon,  468. 

No  one  can  prescribe  for  a  public  nuisance,  481. 

one  may  gain,  to  fish  in  creeks,  &c.,  and  to  exclude  others,  493,  494. 

cannot  be  claimed  to  fish  in  the  sea  by  a  que  estate,  495. 

extends  to  several  or  exclusive  fishery  in  a  river,  499,  500. 

owner  of  such  fishery  may  exclude  the  land-owner,  500. 

cannot  be  claimed  for  easement  of  prospect,  578. 

how  far  good  for  light  and  air,  574-592. 

gained  against  existing  right  only  by  adverse  user,  640,  641. 

when  and  how  far  conclusive  of  a  right,  25,  101,  103,  105  -  109. 

destroyed  by  union  of  the  two  estates,  383,  606,  607. 
PRESUMPTION, 

how  far  conclusive  from  user,  104,  105,  167  -  169. 

distinguished  from  an  actual  bar,  104,  105. 

of  a  lost  deed  from  long  user  and  enjoyment,  24,  25,  101,  103- 
105,  107. 

of  law  distinguished  from  that  of  fact,  108,  109. 

substituted  for  ancient  prescription,  24,  101. 

corresponds  to  possession  and  limitation,  25,  101. 

used  to  express  prescription,  25,  101. 

how  far  open  to  be  rebutted,  104,  105,  168. 

•what  l.ength  of  enjoyment  raises  it,  102. 

none  raised  when  there  could  be  no  grant,  164,  165. 

user  raises  none,  if  for  less  than  the  requisite  time,  123. 
PRINCIPAL, 

grant  of,  carries  appurtenances,  32,  39,  46. 


INDEX.  725 

PRINCIPAL,  Continued. 

grant  of,  carries  what  is  necessary  to  its  enjoyment,  32,  39,  40,  52, 
251  -257. 

extent  of  grant  restricted  to  what  grantor  has,  52. 

what  may  pass  as  a  parcel  of,  or  appurtenant,  89. 
PRIORITY 

of  right  to  enjoy  water  when  all  cannot,  285  -  287. 

what  constitutes,  in  occupation  of  water-power,  411,  412. 
PRIVATE  WAYS, 

towns  not  liable  for,  though  used  by  the  public,  199,  205. 

how  far  towns  are  liable  if  suffered  to  be  travelled  when  unsafe, 
199. 

owner  of  may  stop  public  use  of,  183,  194. 

what  are  meant  by,  in  statute  of  Mass.,  1 75. 

how  far  such  ways  are  constitutional,  401. 

cannot  be  one  upon  a  highway,  138,  217. 

owner  of,  is  to  repair  it,  254,  256. 

what  owner  may  do  in  fitting  it  for  use,  248,  251,  254,  257. 

when  owner  of  land  may  establish  gates  upon,  252. 

when  a  discontinued  highway  becomes  one,  75,  226. 
PRIVITY, 

between  successive  owners  to  gain  prescription,  148,  149,  151. 

that  between  successive  tenants  insufficient,  150. 
PRIVILEGES, 

what  pass  as  incident  by  grant  or  reservation,  46. 

what  pass  as  incident  in  grants  of  mills,  53,  70. 

need  not  be  named  in  a  deed  to  pass  existing  easements,  32,  50. 

what  pass  by  construction,  referred  to  the  state  of  the  premises,  48, 
165. 
PRIVY, 

which  of  two  houses  to  guard  against  as  a  nuisance,  572,  573. 
PROFERT 

of  deed  not  required  after  time  of  prescription,  102. 
PROFIT  A  PRENDRE, 

in  what  they  consist,  3,  489,  496. 

how  far  same  with  or  different  from  easements,  3,  4,  12,  118. 

how  far  right  to  take  water  is,  12,  118,  489. 

distinct  from  a  right  to  the  soil,  14. 

only  persons  or  bodies  politic  can  claim,  117. 

cannot  be  claimed  by  custom,  7,  112,  116. 

can  be  gained  only  by  grant  or  prescription,  7,  8. 

can  only  be  claimed  by  prescription  in  a  que  estate,  14,  112,  116, 
117. 

what  may  be  claimed  as  by  prescription,  117,  119. 

when  appurtenant  to  another  estate,  8,  496. 


726  INDEX. 

PROFIT  A  PRENDRE,  Continued. 

how  exercised  and  when  assignable,  8,  118,  119. 

a  personal  right  to,  an  estate  in  land,  8,  11,  118,  496. 

this  doctrine  applied  to  the  right  to  take  fish,  496. 
PROPERTY, 

how  far  there  may  be  in  a  stream,  274. 
PROSPECT, 

a  right  of  an  urban  servitude,  1 6. 

may  be  gained  by  subjecting  one  parcel  to  another,  9G,  579,  591. 

equity  will  protect  one  implied  in  a  grant,  85,  94-97. 

cannot  be  gained  by  prescription,  578. 

may  be  gained  by  estoppel  raised  by  a  grant,  578. 
PUBLIC  STREAMS, 

of  rights  of  way  in,  by  the  public,  474. 

■what  are  navigable  at  common  law,  475. 

how  far  all  are  public  in  which  there  is  a  tide,  475. 

such  as  are  navigable  by  art,  not  public,  476. 

may  be  made  public,  though  not  navigable,  4  75,  476,  479. 

when  and  of  what  capacity  to  be  highways,  476-479. 

no  one  may  dam  or  obstruct  a  public  river,  480. 

any  one  wishing  to  use  such  stream  may  remove  obstructions  in, 
481. 

if  one  changes  its  channel  in  his  land,  he  opens  it  to  the  public,  487. 

when  the  property  in  a  stream  is  in  the  state,  478. 

■when  rights  of  riparian  owner  are  bounded  by  the  bank,  479. 

who  owns  the  shore  of  publitj  streams,  480-482. 

■when  the  public  have  an  easement  in  the  banks  of,  478,  486. 

whether  right  to  navigate  a  stream  gives  a  use  of  the  banks,  482- 
485. 

when  one  may  appropriate  eddies  in  public  streams,  483. 

a  right  to  float  logs  in,  gives  no  right  to  boom  them,  484. 

the  common  law  gives  no  right  to  use  the  banks  in  navigating,  485, 
486. 

if  a  bridge  across  such  stream  flow  one's  land,  he  is  entitled  to  dam- 
ages, 481. 

of  the  form  of  remedy  for  damage  by  a  public  bridge,  481. 

riparian  owner  has  no  claim  to  damage  if  the  public  stop  a  navigable 
stream,  482. 

how  far  a  company  liable  for  effects  of  a  dam  across  a  public  stream, 
487,488. 

{See  Navigable  Streams.) 
PUBLIC,  THE 

alone  competent  to  take  dedication,  176,  184,  188,  206. 

may  lose  a  dedication  by  non-user,  212. 

who  has  charge  of  what  is  dedicated  to,  210,  211. 


INDEX.  727 

PUBLICI  JURIS, 

how  far  water  is,  275,  277,  280,  304,  305. 

ruMP, 

use  of  not  a  continuous  easement,  51. 
PYER  vs.  CARTER, 

doctrine  of  the  case  of,  considered,  62-  71. 

Q. 

QUE   ESTATE, 

what  is  and  when  applied,  14,  115. 
when  the  ground  of  a  prescription,  115,  117,  120,  597. 
what  is  incident  or  appendant  only  can  be  claimed  by,  118. 
whether  right  to  take  seaweed  can  be  otherwise  claimed,  597. 
QUIRITARIAN 

ownership,  what  is,  100. 

R. 
RACE-WAY, 

right  of  passes  with  mills,  313. 

head  and  tail,  what  are,  313. 

owner  of  mill  may  clear  on  another's  land,  31,  334,  377. 
RAILROAD, 

how  far  easement  of,  are  like  highways^  214. 

may  owe  negative  services  in  their  use,  18. 

what  owner  of  soil  of,  may  do  and  require,  214,  215. 
RAIN-WATER, 

_  rights  in,  427-432,  434. 

(See  Surface  Water.) 
REAL  SERVICES, 

what  are,  5,  504. 
REASONABLE, 

what  is,  a  test  of  lawful  user,  278  -  282. 

what  is,  depends  upon  circumstances,  281,  304,  319,  355. 

rule  applied  to  use  of  water  by  land-owner,  278-282,  283,  334. 

rule  of,  applied  to  cases  of  irrigation,  302. 

a  test  of  valid  prescriptions,  115,  120. 

custom  must  be  in  order  to  be  good,  114,  120. 
RELEASE 

of  damages  by  flowing  by  parol,  416. 

does  not  run  with  or  bind  the  estate,  416. 
REMAINDER-MAN 

not  affected  by  prescription  against  tenant,  152,  156,  157. 
REMEDIES  FOR  INJURY  TO  EASEMENTS, 
1.  by  action  at  law,  must  be  case,  661. 

it  Ues,  though  no  actual  damage  done,  if  it  invades  a  right,  659. 

special  damage  must  be  shown,  to  recover  for  injury  to  public  ease- 
ments, 660. 


728  INDEX. 

REMEDIES  FOR  INJURY  TO  EASEMENTS,  Continued. 
when  action  for,  is  local,  661-663. 
any  one  in  possession,  may  sustain  it,  662. 
when  reversioner  may  sue,  663. 
ejectment  will  not  lie  to  try  title  to  easement,  663. 
action  lies  for  continuing  nuisance,  663-666. 

against  lessor  and  vendor  with  warranty,  for  continuing  nuisance  by 
lessee  and  vendee,  665. 

2.  in  equity,  in  what  cases  it  interposes,  365,  668-674. 

by  injunction  to  prevent  obstruction  and  disturbance  of  an  ease- 
ment, 668,  671. 
by  decreeing  abatement  of  an  existing  nuisance,  671. 
when  chancery  acts,  though  the  title  is  in  dispute,  673,  674. 
when  it  will  interpose,  though  no  remedy  at  law,  673. 
ordinarily  will  not  act  till  title  is  settled,  668,  673. 

3.  provisions  by  statute  for  abating  private  nuisances,  674. 

4.  by  act  of  abatement  by  the  party  injured,  365,  366,  675,  676. 

{See  Abatement.) 
what  is  prerequisite  to  adopting  it,  678,  682. 
within  what  time  to  be  exercised,  678. 

5.  by  statute,  for  flowing  lands,  as  under  the  mill  laws. 

{See  Mill  Laws.) 

when  mill-owners  may  elect,  366. 
REPAIR, 

who  to  make  of  things  dedicated,  210,  211. 

owner  of  private  ways  to  make,  254  -  256,  654,  655. 

of  a  drain  when  owner  is  to  make,  81,  628,  656. 

of  bridges  in  highway,  who  to  make,  255. 

of  mill-dams,  &c.,  owned  jointly  who  to  make,  344,  345. 

what  mill-owner  may  do  to  repair  his  works,  345,  655. 

mill-owner  may  stop  the  stream  to  make,  336. 

what  mill-owner  bound  to  do,  by  way  of,  362. 

one  bound  to  make,  may  do  what  is  necessary  for  it,  254, 506, 655  -  657. 

dominant  estate,  usually  bound  to  make,  254,  654  -  658. 

of  party  walls,  542  -  554. 

of  parts  of  a  house  by  one  of  several  owners,  567,  572. 

of  watercourses,  356,  376,  377,  381. 

of  wells,  when  not  required,  655. 

of  embankment  for  mills  on  another's  land,  357. 

servient  may  be  liable  by  covenant  to  repair,  254,  655. 

duty  as  to  servient  in  oneris  ferendi,  656. 
RESTRICTION 

in  use  of  one  of  two  estates  when  not  an  easement,  30. 
RESTORATION 

of  an  estate  by  rebuilding  or  repair  revives  easements,  658. 


INDEX.  729 

RE\^RSIONER, 

not  affected  by  prescription  against  tenant,  105,  152,  156,  157,  579. 

Low  far  he  can  claim  easements  gained  by  tenant,  158. 

how  far  affected  by  tenants  abandoning  an  easement,  414. 

bound  by  prescription  begun  against  him  and  continued  against 
tenant,  152,  157. 

not  bound  as  to  party  wall  by  act  of  tenant,  543. 
REVIVOR, 

of  easements  after  unity  of  estates,  609. 

when,  by  separation  of  the  two  estates,  611  -621. 

would  not  operate  if  condition  of  estates  had  changed,  611. 

in  what  cases  when  one  or  both  estates  are  conveyed,  612-621. 

may  be  by  grant  or  reservation,  615. 

civil  law  as  to  effect  of  separating  estates,  616. 

such  as  are  discontinuous  do  not,  619. 

whether  affected  by  expense  of  substituting  the  easement,  619. 

right  of  party  wall  upon  rebuilding  house,  625. 

if  interrupted  by  act  of  Providence  and  it  ceases,  638. 

none,  if  interruption  be  by  act  of  party,  638. 

by  revocation  of  a  license  to  obstruct,  650,  652. 

when  a  principal  thing  is  repaired  or  rebuilt,  658. 
RESERVATION, 

to  create  easement  by  when  it  must  be  express,  85,  89. 

when  implied,  if  clearly  necessary,  66-  71,  78,  80,  89. 

what  words  will  create  and  what  form  of  deed,  26,  27,  72. 

when  it  has  the  effect  of  an  exception,  26,  72. 

can  only  be  to  the  grantor,  26. 

when  so  created,  easements  pass  by  grant,  27,  28. 

how  reserved  to  grantor  out  of  grantee's  own  estate,  28. 

of  a  "  road  "  or  "  way,"  is  an  easement  only,  39. 

always  one  of  a  way,  if  of  necessity,  40. 

if  of  a  drain  the  owner  is  to  repair  it,  81. 

what  is  the  duration  of  such  easements,  27. 

of  easement,  implies  only  what  is  necessary  to  enjoy  it,  51. 

of  right  to  draw  water  gives  no  right  to  erect  a  mill,  51. 

of  water  for  a  tan-yard  gives  no  right  to  foul  it,  52. 

may  be  of  a  drain  for  one  house  in  granting  another,  62,  70,  614, 
615. 

easements  may  be  revived  by,  as  by  grant,  615. 
RESERVOIR, 

right  to  maintain  by  mill-owners,  341,  407. 

when  a  lower  mill  may  draw  from,  343,  366. 

right  of  when  it  passes  with  a  mill,  42,  53. 

right  of  mill-owners  to  construct  and  maintain,  341  -  343. 

lower  mill  may  draw  what  it  adds  to  one  above,  366. 


730  INDEX.  -v 

REVOCATION  • 

of  dedication,  when  it  may  be  made,  188,  200,  201. 
EIGHT  IN  GROSS, 

of  a  way,  not  alienable,  10,  11,  27. 

is  alienable  if  it  implies  occupancy  of  lands,  11. 

of  drawing  water  when  alienable,  11. 

to  take  gravel,  &c.,  is  an  estate,  11. 

how  annexed  to  or  severed  from  land,  12,  33. 

easements  never  presumed  to  be,  217. 

such  rights  only  for  the  life  of  the  owner,  36. 

how  one  can  prescribe  for,  36. 
RIPARIAN 

proprietors,  who  are,  276,  note. 

their  rights  in  running  waters,  276,  277. 

entitled  to  its  flow  in  a  natural  state,  278  -  280,  290,  319. 

may  apply  it  to  use  on  their  own  lands,  278. 

to  what  uses  they  may  apply  it,  278,  281. 

in  what  manner  they  may  apply  it,  281. 

what  is  a  reasonable  use  by,  depends  on  circumstances,  282,  283, 
319,  355. 

have  no  right  to  use  it  to  injury  of  others,  279,  319. 

what  rights  they  may  gain  as  to,  by  adverse  user,  283. 

what  rights  of  irrigation  belong  to,  296,  297,  300. 

may  not  stop  the  water  for  irrigation,  299,  300. 

successive  have  natural  and  equal  rights  to  water,  319,  439. 

which  has  precedence  if  not  enough  for  all,  285  -  289. 

whether  one  may  take  the  entire  stream,  289,  303. 

action  by,  only  lies  for  unreasonable  use  of  a  common  right,  305. 

may  gain  rights  by  user  against  mills,  307. 

may  drain  their  lands  by  ditches  into  the  stream,  331,  332. 

whether  they  may  cut  sluices  for  irrigation,  298,  300. 

when  they  may  not  divert  artificial  watercourses,  370. 

may  occupy  mill  power,  left  unoccupied,  332. 

how  far  may  stop  water  to  injury  of  those  below,  336. 

may  grant  the  right  of  flow  of  water  independent  of  the  land,  385. 

when  one  may  not  change  stream  in  his  own  land,  387,  388. 

may  use  his  land  though  another  control  the  water,  354. 

may  protect  his  land  by  dikes  against  flowing  for  mills,  415. 

have  the  same  rights  of  water  in  a  new  as  old  channel,  388. 

rights  of,  attached  to  water  flowing  from  springs,  439,  448. 
RIVER, 

wliat  it  embraces  and  how  defined,  267,  268. 

when  divided  by  an  island  becomes  two  watercourses,  268. 

may  have  character  of,  though  at  times  dry,  267. 
RIVERS,  PUBLIC,  (See  Public  Stueams.) 


INDEX. 

RUBBISH  AND  WASTE, 

right  of  throwing  in  a  stream,  281,  355,  356. 

when  owner  may  do  it,  281,  356. 

when  mill-owner  liiible  for  doing  it,  355,  356. 
«  RUN  "WITH," 

easements  do,  with  the  thing  granted,  29. 

release  of  damages  by  flowing,  when  it  does  not,  406,  416. 
RURAL  SERVITUDES, 

what  are,  15,  16,  265. 

S. 
SAND  AND  STONE, 

right  to  take,  as  profits  a  prendre,  1 1 7. 
SAWDUST, 

whether  owner  liable  for  throwing  into  the  stream,  355. 
SALE  OF  LOTS 

on  private  streets  creates  an  easement  in,  176. 
SCOTCH  LAW 

of  servitudes  of  water,  &c.,  17,  505. 

of  support  and  repair  of  houses,  569  -  572,  656,  657. 
SEA-WEED, 

a  right  to  take,  a  profit  a  prendre,  4. 

right  to,  cannot  be  claimed  by  custom,  4. 

may  be  gained  appurtenant  to  some  estate,  597. 

how  the  right  to  be  exercised,  597. 
SECONDARY 

easements,  what  are,  31,  291. 
SECRET 

enjoyment  gains  no  prescription,  122,  153  -  155. 
SEIZIN 

of  owner  not  affected  by  another's  easement,  9. 
SERVIENT 

estates,  what  are  such,  3,  9. 

may  be,  though  not  contiguous  to  dominant,  13. 

union  of,  with  dominant,  extinguishes  easements,  10. 
SERVITUDES, 

what  are,  and  in  what  consist,  2-5,  265. 

how  far  identical  with  easements,  3,  5. 

are  not  such  if  granted  to  the  person,  4. 

what  are  personal,  real,  and  praedial,  5. 

what  are  negative  ajid  affirmative,  5,  15,  16,  18. 

imply  a  burden  on  one  estate  in  favor  of  another,  6,  265. 

are  not  affected  by  conveyance  of  the  estate,  7. 

may  be  acquired  by  grant  or  prescription,  7,  18. 

rural,  urban,  continuous,  and  apparent,  15,  17,  2G5. 

what  are  natural  ones,  18,  20,  291,  300. 


731 


732  INDEX. 

SERVITUDES,   Continued. 

f 

how  far  one  field  must  receive  water  from  another,  19,  427  -432, 
434,  438. 

one  cannot  have  one  in  his  own  estate,  20. 

negative  of  light  and  air  applied  in  New  York,  22. 

who  can  or  cannot  impose,  on  an  estate,  36. 

when  erected,  they  remain  charged  on  the  land,  29. 

are  not  divisible  by  the  civil  law,  31. 

of  water,  what  are  by  civil,  French,  and  Spanish  laws,  502  -510. 

if  In  gross,  they  cannot  be  granted  over,  36. 

belonging  to  individuals  like  those  created  by  dedication,  190  -  194. 
SEVERAL 

fishery,  what  is,  498,  501. 
SEWER, 

what  constitutes  one  in  law,  267. 
SIC  UTERE  TUO, 

as  a  maxim  applied,  280,  317,  458,  459,  462. 
SLUICES, 

whether  owner  may  cut,  in  banks  for  irrigation,  298,  300. 
SMELLS, 

right  to  create,  may  be  gained  by  user,  593. 
SOAP, 

thrown  into  stream,  owner  liable  for,  355. 
SOIL 

of  ways,  what  use  owner  of,  may  make,  247. 
SPANISH 

servitudes  of  water,  507. 
SPORTS, 

right  to  use,  on  another's  land,  an  easement,  4,  114-116. 
SPOUT."  {See  Eaves'  Drip.) 

SPRING  OF  WATER, 

when  a  watercourse,  270. 

underground  sources  may  be  cut  off,  455.  ' 

may  not  be  done  maliciously,  454,  457  -  461. 

may  be  dedicated  to  the  public,  186. 
SQUARES, 

public,  easements  in,  different  from  highway,  201. 

how  far  dedicated  by  building  on,  208. 

if  dedicated,  who  responsible  for  care  of,  210. 
STILLICIDIUM.  {See  Eaves'  Drip.) 

a  servitude,  265,  469,  4  70. 
STOPPAGE 

of  the  flow  of  a  stream,  when  mill-owner  may  make  it,  336. 

as  a  remedy  by  one  owner  for  wrongful  use  by  another,  366. 

whether  one  can  cease  to  do  it,  to  another's  injury,  390. 


INDEX.  733 

STREAMS  OF  WATER, 

parts  of  the  freehold,  274,  276,  279,  280. 

owner  of,  may  change  or  deepen,  when,  334,  360,  387. 

how  far  restrained  from  restoring,  when  changed,  388. 

owner  of,  may  make  all  reasonable  use  of  it,  280. 

has  a  right  to  receive  it  from  and  discharge  it  through  another's 

land,  287-291. 
effect  upon  rights  to,  of  changes  by  natural  causes,  292. 
owners  on  opposite  sides  own  to  the  thread,  284,  297,  479,  482. 
such  owners  own  the  power  of  the  stream  jointly,  283,  284. 
what  is  meant  by  the  term  "  stream,"  267,  268. 
priority  of  natural  rights  to  use  of  water  of  stream,  285-  287. 
(For  rules  as  to  public  and  underground  streams,  see  Public  Streams 

and  SUIJTERRANEAN  WaTEU.) 

STREETS,  &c., 

mutual  easements  of  houses  on,  90-97. 

rights  of  owners  on,  of  a  private  character,  when  dedicated,  187. 
SUBJACENT 

support  of  lands.  (^See  Support.) 

SUBSTITUTION, 

how  far  may  be,  of  one  way  for  another,  258  -  263. 
SUBTERRANEAN 

waters,  law  of,  recent,  440. 

form  a  part  of  the  freehold,  like  rocks,  &c.,  445,  453. 

owner  may  cut  oti"  supply  from  adjacent  owner,  441,  443,  444,  450  - 
457,465. 

one  may  not  do  this  maliciously,  442,  454,  457  -  462. 

rule  as  to  cutting  off  supply  by  the  civil  law,  443,  462, 

rule  does  not  extend  to  defined  watercourses,  442,  448,  454,  456. 

one  may  not  poison  percolating  water,  442. 

lower  owner  may  not  claim  percolation  from  a  higher  one,  442. 

when  owner  may  not  deprive  mill-owner  of,  443,  447,  449. 

strangers  may  not  deprive  land-owner  of,  457. 

owner  without  remedy  if  deprived  by  public  works,  445,  447. 

one  may  not  set  back  a  stream  to  percolate  into  another's  land,  445, 
446. 

one  mine  must  suffer  percolation  from  another,  449. 

whether  prescription  applies  to  these,  128,  453,  454,  462  -  468. 

rule  as  prescription  in  the  French  code,  468. 

swamp  owner  may  prevent  percolation  to  a  stream,  434  -  438. 

American  cases  of  percolating  waters,  449  -460. 
SUCCESSIVE 

possession  by  privies  gains  prescription,  148-151. 
SUCCESSOR 

of  a  tenant  bound  by  notice  to  such  tenant,  683. 


734  INDEX. 

SUPPLY, 

difference  -whether  watercourse  derives  from  natural  or  artificial 
sources,  367,  369,  372,  383-385. 
SUPPORT. 

1.  of  houses  one  by  the  other,  right  of,  15,  55,  531. 

how  far  it  passes  as  an  easement  or  a  servitude,  55,  78. 

may  be  gained  by  gi-ant  or  reservation,  531,  532. 

no  right  of,  grows  out  of  juxtaposition,  534. 

right  of,  applies  only  to  next  adjoining  houses,  532,  533. 

one  liable  if  he  take  down  his  house  caralessly,  532  -  535. 

how  far  rights  as  to,  affected  by  house  being  inefficiently  built,  521. 

law  of,  grows  out  of  different  freehold  in  one  house,  564. 

2.  of  parts  of  houses  by  other  parts,  564  -  572. 
Scotch  and  French  law  as  to  repairs  of,  569  -  572. 
owner  of  one  story  not  to  impair  support  of  another,  565. 
whether  one  owner  can  hold  another  to  contribute  for,  566. 
how  far  writ  de  domo  reparanda  applies,  56  7,  568. 
whether  an  action  lies  if  one  neglects  to  repair,  567,  568. 
whether  owners  can  rebuild  if  destroyed,  572. 

which  of  two  owners  to  prevent  the  nuisance  of  a  privy,  572,  573. 

3.  of  bridges  in  highways,  who  liable  for,  255. 

4.  of  soil  laterally  a  natural  right,  512,  514. 

does  not  extend  to  new  burdens  upon  it,  512,  514,  516,  518,  524,  525. 

right  of,  for  new  burdens,  an  easement,  512,  518,  519. 

same  rule  as  to  latei-al  and  subjacent  soil,  513,  520. 

of  care  to  be  used  in  excavating  near  another's  land,  514,  517,  519, 

521-526. 
one  must  not  cause  adjacent  soil  to  fall,  514,  516. 
what  care  to  be  used  in  respect  to  a  house  on  adjacent  land,  520, 

522-524. 
reference  had  to  usage  in  the  mode  of  excavating,  522,  527. 
.  what  rule  of  damages  for  injuries  to  land  or  houses,  524. 
what  rule  as  to  mode  and  extent  of  excavation,  526,  529. 
liability  for  injury,  how  far  affected  by  knowledge,  527,  528,  530. 
liability  for  taking  down  one's  own  house  carelessly,  529,  530. 
an  ancient  house  regarded  like  the  natural  soil,  529. 
how  far  affected  by  state  of  repaii',  521,  528,  529. 
rule  of  civil  law  as  to  excavating  near  adjacent  land,  513. 
rule  of  Solon  on  same  subject,  513. 
rule  of  French  code  on  same  subject,  513. 
rules  applicable  to  construction  of  public  works,  516. 

5.  of  subjacent  soil  in  respect  to  mines,  558. 

right  arising  from  upper  and  lower  freehold  in  same  soil,  558. 
lower  freehold  to  support  the  upper,  558  -  560. 
lower  not  bound  to  support  buildings  on  upper,  559. 


INDEX.  735 

SUPPORT,  Continued. 

owner  of  lower  may  not  injure  ancient  house  on  upper,  563. 

mine  owners  to  leave  support  of  surface,  559,  561. 

right  of  action  arises  when  removing  of  support  done,  561. 

surface  owner  may  release  right  of  support,  561,  562. 

liability  of  mine  owner  extends  to  public  works,  563. 

mine  owner  to  make  his  shaft  safe  as  to  cattle,  564. 
(See  Mine.) 

same  rule  applies  between  public  works  and  private  owners,  563. 
SUSPENSION 

of  flowing,  how  it  affects  the  easement  of,  147. 

of  presci'iption  as  to  minors,  151,  160,  166. 

how  far  death  of  tenant  is,  to  a  prescription,  159  -  163. 

of  easements  by  unity  of  possession  of  estates,  606. 

if  by  act  of  Providence,  when  it  ceases  easement  revives,  638. 
SWAjyiP, 

owner  of  may  drain  or  use  the  water,  270,  288,  434  -438. 

law  of  Massachusetts  as  to  draining,  428,  note. 
SURFACE  WATER, 

how  far  one  parcel  obliged  to  receive  from  another,  19,  268-272, 
288,427-432,  439. 

drainage  distinct  from  watercourses,  268,  269,  439. 

when  a  collection  of,  becomes  a  watercourse,  273. 

land-owner  may  divert  it  from  a  mill  below,  435. 

soaking  into  the  ground,  is  a  part  of  the  freehold,  435. 

one  owner  may  not  change  the  discharge  of,  on  to  another,  427,  430, 
431. 

how  far  lower  can  prevent  discharge  of,  on  to  it,  429,  431,  433,  439. 

one  house  lot  not  obliged  to  receive  from  another,  433,  cont.  434. 

owner  may  drain  it  into  natural  channels,  428,  429. 

owner  may  prevent  by  raising  his  land  for  cultivation,  &c.,  270,  272, 
430,  431. 

upper  owner  can  only  discharge  the  natural  supply,  432,  443. 

lower  owner  not  bound  to  open  ditches  for,  433. 

no  claim  to  have  it  percolate  into  another's  land,  430. 

upper  owner  may  use  it  on  his  own  land,  434. 

upper  owner  may  get  rid  of  it  from  his  premises,  438. 

law  of  Massachusetts  as  to  draining  swamps,  428,  note. 

rights  of  lower  owner  to  claim  water,  limited  to  flowing  streams,  436, 
439. 

T. 
TACKING 

successive  possessions  to  create  prescription,  148,  151. 
TAIL-RACE, 

in  mill-power,  what  is,  313. 


736  INDEX. 

TAN  BARK,  &c., 

owner  when  liable  for  throwing  into  a  stream,  355,  356. 
TENANTS, 

of  estates  claim  prescription  througli  owners  of  the  fee,  121. 

user  adverse  to,  does  not  affect  reversioner,  105,  152,  156,  157,  579. 

how  far  gain  prescription  for  reversioner,  158. 

of  party  wall,  cannot  bind  reversioner  as  to  same,  543. 
TENANT, 

in  common,  cannot  create  an  easement,  37,  38,  222. 

cannot  dedicate  common  property,  180. 

may  acquire  easement  for  cotenant,  38. 

at  will,  must  prescribe  in  landlord's  name,  121,  151. 

for  life,  an  easement  may  be  gained  against,  158. 

adverse  user  against  does  not  affect  reversioner,  156-  158. 

cannot  gain  prescription  against  landlord,  150,  151. 

one  may  in  England  gain  prescription  against  another,  152. 

when  prescription  may  run  against  an  estate  in  hands  of,  152,  157. 

successive,  do  not  acquire  prescription  by  occupancy,  151. 
TERMES  DE  LA  LEY, 

a  book  of  authority,  2. 
THREAD 

of  a  stream,  393.         {See  Filum  Aqu^.) 
THROWING 

washings  from  mines  into  a  stream,  law  of,  598. 
TIDE  MILLS 

not  governed  by  mill  laws,  408. 
TIMBERS 

of  a  house,  right  to  support,  a  servitude,  15. 
{See  Party  Wall.) 
TIME, 

requisite  to  gain  highways  by  prescription,  1 78. 

requisite  to  gain  prescriptions  generally,  101  -  103,  122,  123. 

requisite  to  create  a  dedication,  188,  199. 

difference  between  what  is  a  presumption  and  a  bar,  103,  105. 

when  prescription  begins  to  run,  128,  129,  560,  561. 

when  it  begln-i  as  to  continuous  flowing,  140. 

of  day  when  ways  may  be  used,  may  be  prescribed,  241,  242. 
TITLES 

to  easements  by  grants  may  be  express  or  implied,  29. 
TOUR  DE  L'ECHELLE, 

what  it  is  and  its  extent,  472,  note. 
TOWNS 

may  prescribe  to  take  sea-weed,  118. 

may  prescribe  for  easements  as  persons,  119. 
not  liable  for  any  but  public  highways,  205. 


INDEX.  737 

TOWNS,  Continued. 

cannot  require  private  ways  to  be  open  or  made,  26G. 

may  prescribe  for  maintaining  a  gate  in  a  highway,  172. 
TRADE,  OFFENSIVE, 

right  to  carry  on,  gained  by  prescription,  592,  593. 

prescription  may  be  gained  against  carrying  on,  594. 
TRAVELLER 

may  go  outside  of  highway  if  out  of  repair,  254. 

may  not  go  outside  of  a  private  way,  254. 
TREES, 

in  highway,  to  whom  belong,  214,  215. 

owner  of  land  may  cut  ovei'hanging  branches  of,  677. 
TRENCH, 

if  right  of,  granted  for  one  use,  not  to  be  used  for  another,  53. 

quantity  of  water  in,  may  not  be  increased,  148. 

who  bound  to  cleanse  and  repair,  656. 

right  to  cleanse  and  repair  incident  to  right  to  dig,  656. 
TRESPASS, 

not  an  action  for  disturbing  an  easement,  376,  661. 

will  not  lie  for  passing  over  an  open  way,  181,  192. 

will  lie  for  disturbance  of  pew  right,  604. 
TRUST 

of  an  easement  may  be  created,  and  how,  601. 
TRUSTEE, 

by  sale  of  another's  land,  creates  a  way  over  his  own,  221. 
TURNING 

teams  on  another's  land  in  ploughing,  easement  of,  d96. 
TURVES, 

right  to  cut  and  take,  an  easement,  117. 

U. 
UNINTERRUPTED  USER 

essential  to  prescription,  136,  140-143,  155,  156. 
UNITED  STATES, 

how  far,  as  proprietors  of  land,  subordinate  to  state  laws,  420. 
UNITY, 

of  dominant  and  servient  estates,  effect  of,  83,  143,  150,  158,  383, 
600-611. 

though  only  at  intervals,  interrupts  prescription,  143. 

what  rights  like  easements  not  affected  by,  381  -  383. 

effect  of,  upon  the  right  of  common,  599,  600. 

to  work  extinguishment  of  easement  what  necessary,  606,  607. 

of  possession,  suspends  easements,  606. 

what  constitutes,  of  title  and  possession,  607  -610. 

if  title  of  one  of  the  estates  fails,  easement  revives,  609. 

effect  on  easement  of  separation  of,  611. 
47 


738  INDEX. 

UNITY,  Continued. 

eiFect  of  separation  by  sale  of  one  or  both,  612  -  621. 

effect  to  extinguish  covenants  in  a  lease,  618. 
UPPER  FIELD, 

its  right  to  discharge  water  on  to  lower,  19,  268-272,  427-432. 

how  far  this  right  may  be  controlled,  19,  429,  431,  433,  439. 
URBAN  SERVITUDES, 

affirmative  and  negative,  15,  16,  265,  535. 
USE  OF  A  THING, 

granted,  carries  every  thing  necessary  to  it,  39. 
USER, 

regarded  as  evidence  of  a  grant,  24,  99,  107,  121,  124. 

may  raise  presumption  of  lost  deed,  25. 

evidence  of  title  to  easements  like  possession  to  lands,  25. 

is  the  basis  of  prescription,  99,  102,  104,  106,  107. 

fixes  the  nature  and  extent  of  prescription,  109,  123. 

what  necessary  to  gain  a  prescription,  122-136. 

1.  must  be  adverse,  124-  136. 

to  be  adverse  it  must  invade  some  right,  130,  354. 

must  be  under  an  assertion  of  a  right,  126,  134,  153. 

must  not  be  by  permission  granted,  124  -  126. 

if  in  excess  of  right,  it  is,  as  to  such  excess,  134. 

it  is,  if  claimant  exercises  it  when  he  wishes,  130. 

continued  for  twenty  years  presumes  it  to  be,  129. 

when  from  its  nature  and  mode  presumed  to  be,  135. 

if  of  what  is  common  to  all,  it  is  not,  135. 

may  become  so  though  begun  by  parol  agreement,  127. 

it  must  be  known  to  be  so,  1 28. 

whether  it  is  or  not,  depends  on  intention,  132. 

distinction  between,  as  to  easements  and  lands,  155. 

one  may  have  easements  by,  in  another's  trench  in  his  own  land,  379. 

to  pile  wood  in  a  highway  is  not,  131. 

cases  of  enjoyment  of  water  from  artificial  sources,  not  adverse,  372, 

373. 
of  a  thing  of  right  in  one's  own  land,  not  adverse,  164. 

2.  must  be  exclusive,  136-138,  318,  354. 

may  be  as  to  each,  though  by  several  individuals,  138,  139. 
may  be  as  to  individuals,  though  used  by  the  public,  139. 

3.  must  be  continuous,  and  what  is,  140,  142. 

to  be,  it  must  not  be  interrupted,  136,  141,  143. 

what  would  be  an  interruption,  141  -  144. 

if  by  ancestor  and  heir,  it  is  continuous,  148,  149. 

if  by  successors  privy  in  estate,  it  is,  149  -  151. 

if  it  is  in  a  particular  way  it  establishes  a  right,  106,  107,  352. 

how  far  it  may  be  changed  of  water  and  be  continuous,  144. 


INDEX.  739 

USER,  Continued. 

change  in  mode  of,  does  not  affect  a  right,  145,  357-361. 
change  in  nature  of,  defeats  an  easement,  147,  148. 

4.  must  be  with  knowledge  and  acquiescence  of  land-owner,  152  -  155, 

158. 
of  no  avail  if  owner  makes  objection,  154. 
of  no  avail  if  owner  cannot  object,  156  -  166. 
effect  if  infant  minor  becomes /eme  covert,  156. 

5.  of  ways,  &c.,  may  make  them  public  by  prescription,  172-174,  177. 
of  a  private  one,  does  not  make  it  public,  184. 

if  permissive  to  portions  of  public,  not  a  dedication,  184,  185. 
how  far  evidence  of  accepting  dedication,  189  -  191,  199,  200. 
what  may  be  made  of  squares,  &c.,  by  individuals,  201. 
when  adverse  may  defeat  dedication,  211,  212. 
when  on  one's  own  land  grows  into  an  easement,  49,  54,  55. 

6.  of  water,  the  only  thing  of  property  in  a  stream,  280. 
right  of,  incident  to  ownership  of  land,  276,  277,  280. 

what  owner  may  make  on  his  own  land,  278  -  283,  333  -  336. 

it  must  be  reasonable,  and  what  is,  281  -  283,  334. 

what  is  reasonable  is  for  the  jury,  281  -  283,  335. 

what  is,  depends  on  condition  of  stream  and  business,  336. 

what  is,  relates  to  convenience  of  all,  335. 

not  measured  by  convenience  of  one  party,  335. 

which  of  successive  owners  to  have  preference  in,  285,  352. 

7.  when  change  in  mode  of,  defeats  an  easement,  352. 
limits  and  defines  the  rights  of  the  parties,  352. 
mode  of,  at  time  of  grant,  fixes  the  party's  rights,  75. 

of  that  which  causes  a  nuisance  may  gain  an  easement,  353. 
of  a  dam  across  a  stream,  without  giving  the  whole  water,  352,  353. 
of  a  thing,  how  far  conclusive  evidence  of  grant,  167-  169. 
what  length  of,  necessary  to  a  prescription,  122,  123. 
adverse  user  necessary  to  defeat  an  easement,  640. 
USUCAPION, 

how  distinguished  from  prescription,  100. 

V. 
VENTING 

water,  right  of,  incident  to  mills,  334. 
VICE, 

what  is  meant  by,  in  civil  law,  216. 

W. 

WALLS.  (See  Party  Walls.) 

WASTE  MATTER, 

whether  it  may  be  thrown  into  a  stream,  355,  356. 
nothing  to  poison  or  foul  a  stream,  may  be,  594. 


740  INDEX. 

WATER, 

a  right  to  take  or  use,  an  easement,  4,  265,  308. 
right  may  be  annexed  to  or  severed  from  the  freehold,  11,  12. 
when  regarded  property,  as  part  of  the  soil,  12,  13,  445,  453. 
how  far  a  right  to  take,  &  profit  a  prendre,  12,  118,  489. 
right  of,  in  cistern  or  well,  compared  with  a  stream,  13. 
rights  of  adjacent  field,  as  to  surface,  19,  268  -  272,  427-432. 

{See  Surface  Water.) 
right  to  use  gives  no  right  to  foul,  h2. 

right  to  take  and  use  a  subject  of  grant  and  prescription,  118. 
what  are  servitudes  of,  by  civil  and  French  laws,  602  -  510. 
■   the  extent  of  easements  in,  how  measured,  145. 
effect  of  changing  the  mode  or  extent  of  applying  it,  147. 
easement  of,  consists  only  of  its  use,  266,  280. 
when  its  use  is  an  easement  by  connexion  with  the  soil,  266. 
what  rights  land-owner  has  in,  on  his  own  soil,  265,  266,  278  -  282, 

298. 
owner  of,  may  not  foul  it  or  poison  it,  278,  594. 
how  far  he  may  diminish  its  quantity,  279,  280. 
easement  in,  in  any  form  gained  by  user,  308. 
in  wells  and  swampy  places  belong  to  the  land  itself,  270. 
receiving  and  discharging  of,  for  a  mill,  a  natural  right,  310. 
of  property  in,  while  on  one's  own  land,  275,  280. 
mill-owner  may  not  divert  it,  336. 
when  mill-owner  may  detain  its  flow,  336  -  338. 
quantity  to  be  used  not  regulated  by  owner's  wants,  335. 
owner  may  protect  his  land  from  flow  of,  270  -  272. 
(^ee  Mills.) 
WATERCOURSE, 

what  it  is,  and  how  defined,  266  -  268,  273,  439. 

grant  of,  does  not  carry  the  soil,  26  7. 

stream  of,  may  be  large  or  small,  268,  269. 

is  a  part  of  the  freehold,  274. 

may  be,  though  sometimes  without  water,  268,  269. 

whether  it  is  one  or  not  a  question  for  a  jury,  439. 

river  divided  by  an  island  has  two,  268. 

how  far  applied  to  surface-water  channels,  269,  434,  539. 

when  a  collection  of  surface  water  may  become,  273,  274,  434. 

what  is  an  ancient  one,  273,  274. 

how  far  there  is  a  property  in,  270,  274,  276,  277,  376. 

owner  of,  may  not  foul  the  water,  278,  287,  594. 

what  upper  and  lower  owners  of,  may  do  with  it,  280  -  283,  288, 

303,  439. 
joint  ownership  of,  by  riparian  proprietors,  284. 
ownership  of,  divided  by  the  thread  of  the  stream,  284,  297. 


INDEX.  741 

WATERCOURSE,  Continued. 

what  uses  of,  take  precedence  among  owners  of,  285,  286,  288,  289, 
303. 

natural  wants  of  owners,  to  be  supplied  before  artificial,  289. 

when  and  to  what  extent  owner  of,  may  obstruct  or  divert  it,  293, 
304. 

what  is  a  reasonable  diversion,  depends  on  its  size,  &c.,  304. 

owner  of,  may  change  it  within  his  own  land,  290,  334,  360,  379, 
388. 

whether  he  may  restore  it  back  to  another's  injury,  360,  361,  390. 

owner  of,  may  restrict  himself  from  changing  it,  387. 

effect  of  change  in  by  freshets,  &c.,  on  owner's  rights,  392,  393. 

when  owner  may  restore  it,  if  changed,  392. 

when  one  may  deepen  channel  of,  below  a  mill,  356. 

what  enjoyment  of  such  change  gives  an  easement,  356. 

of  the  easement  of  throwing  washings  from  mines,  &c.,  into,  598. 
{See  Artificial  Watercourse.) 

mill-owner  may  cleanse  it,  356,  357. 
WATERING  CATTLE 

gained  as  a  right  by  prescription,  136. 

whether  it  takes  precedence  of  other  uses  of  water,  282,  283,  288, 
289,  298. 

right  of  may  be  gained  in  what  was  granted  for  irrigation,  136,  379. 
WATER  POWER, 

what  is  meant  by,  and  embraced  in,  280,  311,  314. 

what  is  an  occupation  of,  315,  316,  326. 
WAY, 

what  is  meant  by,  and  what  may  be  claimed  as,  215,  216. 

ex  vi  termini,  implies  a  particular  line,  132,  215. 

different  kinds  and  names  of,  known  to  the  law,  215. 

their  classification  and  division  by  the  civil  law,  216. 

how  different  kinds  are  described  and  used,  216. 

what  a  "  carriage  "  and  a  "  drift "  way,  216,  243. 

"  across  "  a  field,  what  may  be  done  under  right  of,  241. 

for  "  agricultural  purposes,"  what  may  be  done  under  it,  243. 

in  gross,  an  inalienable  personal  right,  10,  217. 

"  for  all  purposes,"  how  far  a  personal  right,  10. 

when  appurtenant  or  appendant,  217. 

always  presumed  to  be  appurtenant,  217. 

appurtenant  cannot  be  turned  into  one  in  gross,  10,  33,  217. 

when  appurtenant  how  far,  to  all  parts  of  the  estate,  239. 

landlord  has  a  right  of,  to  view,  collect  rent,  &c.,  243. 

appurtenant  to  dower  determines  with  it,  6. 

must  be  one  a  quo  and  ad  quern,  132. 

when  an  existing  one  is  a  breach  of  covenant  in  a  deed,  214. 


742  INDEX. 

WAY,  Continued. 

existence  of,  no  bar  to  owner's  real  action,  313. 
like  other  easements  gained  by  grant  or  prescription,  7,  23  —  25. 
may  be  created  by  dedication,  for  the  public,  174  -  176,  192. 
the  public  may  gain  by  prescription,  172,  177. 
private,  cannot  be  prescribed  for  over  a  highway,  138,  217. 
what  user  of,  establishes  it,  a  public  one,  172  -  174. 
user  of  a  private  one,  does  not  make  it  public,  182-  184. 
distinction  between  "  private  "  and  "  public  "  in  the  statute  of  Mas- 
sachusetts, 175. 
towns  may  gain  private  easement  in,  by  prescription,  171. 
if  private  are  opened  in  towns,  not  subjects  of  indictment,  171,  205. 
grants  of  estates  "  with  all  ways,"  pass  only  such  as  are  in  use,  10, 

49,  50,  225. 
right  of,  passes  as  incident  to  grant  of  right  of  pasture,  31. 
right  of,  incident  to  right  of  fishing  or  hunting,  31. 
what  is  implied  by  bounding  on  a  non-existing  street,  230,  246. 
extent  and  direction  of,  determined  by  condition  of  estate,  230  -  237, 

240,  244,  245,  249,  250. 
Tiow  far  controlled  by  marks  upon  plans,  226,  232,  233,  248. 
when  expressly  granted,  neither  party  may  change  it,  235,  236,  238, 

239,  241,  250,  251. 
if  granted  for  one  parcel,  not  to  be  used  for  another,  87,  109,  228, 

229,  238,  239,  240-243,  624,  625. 
granted  for  one  purpose,  not  to  be  used  for  another,  110,  240,  242, 

243,  249,  250. 
rules  for  construing  grants  of,  Atkyns  v.  Boardman,  244,  245. 
nature  and  use  to  be  made  of,  may  be  defined  by  deed,  224. 
referring  to  one  not  existing,  is  not  a  grant,  225,  228. 
when  fixed  by  grant,  cannot  be  controlled  by  parol,  225. 
if  not  fixed  by  grant,  may  be  by  user,  225. 
when  fixed  by  user  may  not  be  changed,  225. 
when  referred  to  as  a  boundary,  estops  the  grantor  to  deny  it,  226, 

228,  229. 
when  bounding  by,  gives  the  purchaser  a  right  to  use,  75,  228,  229. 
rl^^hts  of,  pass  by  plans  on  partition  of  estates,  226. 
■\vlien  implied  upon  dividing  heritages,  58. 
when  it  passes  by  having  been  used  with  an  estate,  58,  59,  74. 
may  pass  from  having  been  used,  though  not  necessary,  74. 
what  are  ways  of  necessity,  40. 

always  created  by  grant  or  reservation,  40,  41,  218,  220,  222. 
how  created,  218. 

must  be  of  strict  necessity,  convenience  not  enough,  219  -  222. 
cannot  be  raised  over  a  stranger's  land,  219,  220. 
executor,  &c.,  may  create  one  over  his  own  land,  221. 


INDEX.  743 

"WAY,  Continued. 

one  of  two  tenants  in  common  cannot  create  it,  222. 

rules  as  to,  apply  to  any  acquisition  of  lands,  221. 

right  passes  as  appurtenant  to  an  estate,  218,  220. 

right  ceases  when  the  necessity  ceases,  220,  222. 

when  "  carriage"  way  may  pass  as  such,  231. 

who  may  designate  such  way,  223. 

who  may  designate  ways  created  by  grant,  223,  224. 

if  there  are  two  in  use,  grantee  may  elect  the  most  convenient,  234, 

235. 
how  ways  are  to  be  used,  240  -  251. 
what  is  a  reasonable  use  of,  for  the  jury,  241. 
the  times  at  which  it  may  be  used,  241,  242. 
grant  of,  gives  no  right  to  pile  lumber  on,  243. 
one  "  convenient  to  get  hay,"  limits  to  one  line,  241. 
same  rights  of  use  as  a  highway  may  attach  to  private  ways,  228. 
ways  of  necessity  to  be  used  as  other  ways,  256. 
to  carry  coals,  implies  a  right  to  lay  a  track,  257. 
whether  one  may  go  extra  viam,  if  way  out  of  repair,  254  -  256,  262, 

654. 
for  carriages  not  necessarily  a  "  drift  way,"  216. 
what  user  is  adverse  or  not  to  owner  of  goil,  131,  132,  137. 
user  of,  over  wild  open  land  is  not,  131. 
may  become  so  if  with  intent  to  gain  a  right,  132. 
when  over  open  commons  gives  an  easement,  131,  137. 
cannot  be  an  adverse  user  over  a  highway,  138,  217. 
owner  of  the  way  to  repair  it,  254,  256,  654  -  656. 
who  to  repair  bridge  over  a  watercourse,  255. 
what  owner  of,  may  do  in  fitting  it  for  use,  &c.,  248,  251,  254,  257, 

654,  655. 
may  not  obstruct  a  stream  in  repairing  it,  655. 
what  rights  owner  of  way  has  in  the  soil,  247,  257. 
may  have  an  action  for  an  injury  to  his  right,  213. 
what  owner  of  soil  may  do  as  to  ways,  252,  253. 
when  he  may  obstruct  the  space  mentioned  as,  246,  247. 
may  stop  private  way  from  public  use,  183,  194. 
may  establish  gates  and  bars  upon,  252. 

may  have  an  action  to  recover  for  injury  to  the  land,  &c.,  253,  254. 
how  it  may  be  lost  or  parted  with,  88,  239,  250,  600  -  611,  624,  634. 
lost  by  partial  change  in  the  principal  estate,  88,  242,  250,  623,  635. 
one  to  a  cottage  ceases  with  the  cottage,  239. 
not  lost  if  the  grant  is  of  the  cottage  "  and  ways,"  239. 
if  gained  by  a  highway  not  lost  by  its  discontinuance,  75,  226. 
may  be  granted  if  it  implies  occupancy  of  land,  11. 
one  dedicated  may  be  lost  by  a  substituted  dedication,  260. 


744  INDEX. 

WAY,   Continued. 

whether  one  can  be  exchanged  for  another  by  parol,  258  -  262,  G33, 
637. 

when  a  parol  exchange  is  a  mere  license,  260. 

when  right  of,  once  extinguished,  revives,  614, 

private,  not  lost  by  dedicating  or  locating  it  to  the  public,  623,  625, 
637. 
WELL, 

right  to  use  not  a  continuous  easement,  60. 

right  of,  attached  to  one  parcel  may  not  be  used  for  another,  87. 

underground  supply  of,  maybe  cut  off,  441,  443,  444,  450-457, 
462. 

when  water  of  a  stream  not  to  be  diverted  by,  347, 

has  no  incidents  of  enjoyment  like  watercourses,  270. 

who  to  repair,  and  when  owner  bound  to  maintain,  655. 
WHARF, 

right  to  maintain  and  use,  596. 
WHEELS 

in  mills,  effect  of  change  in,  on  rights,  358  -  360. 
WILD  LAND, 

passing  over,  when  it  gains  an  easement  in,  131,  132. 
WINDMILLS, 

whether  easements  of  wind  belong  to,  592. 
WIVES 

cannot  impose  servitudes  on  lands,  36. 

(.See  Femes  Covert.) 


Cambridge:   Printed  by  Welch,  Bigelow,  &  Co. 


\ 

LAW  LIBRARY  ,  "^ 


REGIONAL  LlBBAKnAULl  I  J 


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